As a whole, Americans like their doctors. About 75% of people surveyed have a positive view of their doctor. But only 58% of Americans trust their doctor to admit mistakes and take responsibility. Over half of Americans believe that professional misconduct is a very big or moderately big problem.
When a doctor botches a surgery, you can expect a vigorous defense from the doctor’s malpractice carrier. Botched surgeries can lead to large damage awards. As a result, insurers will push you and your lawyer to develop strong evidence of medical malpractice.
Here is some information about medical malpractice and the compensation you can recover after a botched surgery.
What is the Legal Standard for Medical Malpractice?
Medical malpractice is based on negligence law. To prove negligence, you must show four elements:
The doctor-patient relationship creates a duty to provide reasonable medical care under the circumstances. Your claim must arise from the doctor-patient relationship to fall under medical malpractice.
If you slip and fall in the doctor’s office or the doctor hits you in a car accident, you do not have a claim for medical malpractice. You might recover compensation under a different duty but not the doctor’s duty to provide reasonable medical care.
Under Florida law, doctors breach the duty of care when they fail to provide “level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.”
Negligence law does not require intent. This means that you can recover compensation regardless of whether the doctor intended to harm you.
Instead, you can seek compensation when doctors’ actions were unreasonable, even when they were unaware of the harm they caused.
You must prove a causal link between your injuries and the doctor’s breach of duty. Causation has two parts. Cause-in-fact means that the doctor’s acts or omissions must fall within the chain of events that led to your injury. Proximate cause means that injuries were a foreseeable result of the doctor’s acts or omissions.
To prevail on a negligence claim, you must suffer damages. This means that you cannot win a negligence claim for harmless errors.
What Are the Different Types of Medical Malpractice?
Most medical malpractice claims fall into three categories:
Diagnosis errors happen when a healthcare provider misdiagnoses your condition. This could happen when a doctor:
- Diagnoses you with the wrong condition or illness
- Diagnoses you with a condition or illness when you are healthy
- Diagnoses you as healthy when you have a condition or illness
Botched surgeries rarely constitute a diagnosis error. A physician usually diagnoses you long before your surgery.
A “botched” surgery could result from a diagnosis error. For example, suppose that a doctor misdiagnoses you with cancer. During your surgery to remove the tumor, the doctor realizes you do not have cancer but rather a benign condition. In this case, the surgery contributed to your injuries arising from the earlier diagnosis error.
Treatment errors happen when the doctor’s actions or omissions during treatment injure a patient. Most botched surgeries constitute treatment errors.
Some treatment errors that can happen during surgeries include:
- Operating on the wrong body part
- Leaving a foreign object in the body
- Misadministering anesthesia
- Performing the wrong surgery
- Administering the wrong drugs
- Failing to supervise technicians and nurses
- Failing to monitor for side effects and complications
- Discharging patients too soon after surgery
Treatment errors can also result from a lack of skill. This can happen due to physical or mental illness, distraction, intoxication, or incompetence to perform the surgery.
Before performing surgery, a doctor needs to obtain your informed consent. You give informed consent after a detailed conversation with your doctor.
A communication error happens if your doctor operates without talking to you or obtaining your consent. This error can form the basis of a medical malpractice claim.
The conversation required for informed consent should cover several topics, including:
- The nature of the treatment
- The anticipated outcome, including the likelihood of success
- Possible side effects and complications
- Medically acceptable alternatives, including foregoing treatment
In emergencies, doctors can skip informed consent or obtain informed consent from your family.
Defenses to Medical Malpractice for Botched Surgeries
Not every undesirable outcome constitutes medical malpractice. Only those outcomes that resulted from negligence can give rise to an injury claim.
Additionally, doctors can raise defenses to medical malpractice claims, including:
You must suffer damages to win a medical malpractice claim. This means that harmless errors will not provide a basis for medical malpractice.
For example, suppose that a doctor reused single-use medical devices during surgery. If the patient did not develop an infection, the error was probably harmless, and the patient would have no claim for medical malpractice.
Expected Side Effects or Complications
A side effect or complication that you discussed with the doctor before the surgery probably will not support an injury claim.
Everybody reacts differently to surgical treatment. Side effects or complications will occur for some patients. If you consented after discussing the risk of side effects and complications, you probably could not sue when they happen.
An unsuccessful surgery does not necessarily mean your doctor committed malpractice. If the doctor provided medically reasonable treatment after obtaining informed consent, the doctor fulfilled the duty of care. This is true even if the doctor was unable to cure your illness or condition.
What Damages Arise from Botched Surgeries?
In any negligence case, your damages include your economic and non-economic losses. After a botched surgery, you could suffer substantial losses.
Your economic losses would include the cost of corrective surgery or treatment, rehabilitation, and medication. You might miss work or even change jobs as a result of your injuries. Your lost income would constitute an economic loss.
Your non-economic losses include physical pain, mental anguish, and the diminishment of your quality of life. After a botched surgery, you could lose the ability to participate in activities you enjoy. You may even suffer permanent disability or disfigurement that will change your life forever.
After a botched surgery, seeking compensation through a medical malpractice claim might provide your only path to covering all of your costs. More importantly, it can provide justice for the injuries you suffered.