Surgical Errors and Medical Malpractice: Your Questions Answered

No matter how routine the procedure,  surgery always carries risks. 

When things go wrong, the consequences can be life-altering or even fatal. While some complications are unavoidable, others are the result of preventable surgical errors. When these mistakes happen due to negligence, the law offers a path to justice through medical malpractice claims.

At Morgan & Morgan, we believe patients deserve answers and accountability. If you or a loved one has suffered harm due to a surgical error, contact us today for a free case evaluation to learn more about your legal options.

What Is a Surgical Error?

A surgical error is a preventable mistake made during surgery that causes harm to the patient. These errors often go far beyond the accepted risks of surgery and typically occur due to negligence, poor planning, or miscommunication.

While some surgeries are complex and carry inherent risks, not every bad outcome is a surgical error. The key distinction lies in whether the harm was avoidable and whether the medical team acted with the level of skill and care expected of them.

Common examples of surgical errors can include:

• Wrong-site surgery: Operating on the wrong part of the body (e.g., removing the wrong kidney)
• Wrong-patient surgery: Performing a procedure meant for someone else
• Retained surgical instruments: Leaving items like sponges or tools inside the patient
• Anesthesia mistakes: Administering too much, too little, or the wrong kind of anesthesia
• Nerve damage: Unintended injury to nerves due to carelessness
• Infection from unsterile conditions: Failure to maintain a sterile environment
• Unnecessary surgery: Performing surgery that was not medically indicated
• Damage to internal organs: Cutting or puncturing organs that weren’t meant to be operated on
  
   

Are All Surgical Complications Considered Malpractice?

No. It’s important to understand that not every surgical complication is a sign of malpractice. Surgery carries natural risks, and even the most skilled professionals may encounter unexpected issues during a procedure.

Medical malpractice occurs when a healthcare provider fails to meet the standard of care, meaning they didn’t act the way a reasonably competent professional would in a similar situation, and that failure causes harm.

The key components of a surgical malpractice claim include:

• A doctor-patient relationship existed
• The surgeon (or another member of the surgical team) acted negligently
• That negligence directly caused harm
• You suffered damages as a result

What Causes Surgical Errors?

Surgical errors often stem from one or more of the following factors:

Poor Communication

A lack of clear communication between the surgical team can lead to missteps, such as operating on the wrong site or using the wrong instruments.

Inadequate Preoperative Planning

Failing to review the patient's medical history, allergies, or imaging results can lead to catastrophic errors once the patient is on the table.

Fatigue or Burnout

Surgeons and operating room staff often work long, grueling hours. Fatigue can impair judgment, reaction time, and focus—all of which are critical in a surgical environment.

Lack of Experience or Training

Sometimes, surgeons or team members may not be adequately trained for a particular procedure, increasing the likelihood of a mistake.

Failure to Follow Protocols

Operating rooms follow strict safety protocols, such as surgical checklists. Ignoring these steps can lead to avoidable harm.

Who Can Be Held Liable for a Surgical Error?

When a surgical error occurs, one or more of the following parties may be held legally responsible:

• The Surgeon: Most obvious, especially in cases of poor technique or reckless behavior.
• Anesthesiologists: Responsible for keeping the patient stable; errors here can be fatal.
• Surgical Nurses: Tasked with assisting and monitoring; negligence can lead to retained tools or infections.
• The Hospital or Surgery Center: Can be held accountable for failing to properly vet staff or maintain safe conditions.
• Medical Device Manufacturers: In rare cases, a defective tool or implant could be to blame.

At Morgan & Morgan, our attorneys conduct a thorough investigation to determine who should be held accountable for your injury.

What Are the Consequences of Surgical Errors?

The physical, emotional, and financial consequences of a surgical error can be devastating. These might include:

• Additional surgeries or medical treatment
• Chronic pain or disability
• Emotional trauma or PTSD
• Loss of income or ability to work
• Permanent disfigurement
• Reduced quality of life
• Wrongful death

The ripple effects extend beyond the patient. Families often face emotional turmoil and financial strain as they try to adjust to a new reality.

What Should I Do if My Surgery is Postponed?

If your surgery is postponed, whether due to hospital issues, your doctor’s availability, insurance delays, or another reason, it can be frustrating, confusing, and potentially risky to your health. Here's what you should do to protect your well-being and your legal rights:

1. Find Out Why It Was Postponed

Start by getting a clear, written explanation for the delay. Common reasons include:

• Staffing shortages or doctor unavailability
• Equipment malfunctions
• Insurance or authorization issues
• Hospital capacity or scheduling conflicts
• Preoperative test results (e.g., infection, high blood pressure)

Understanding the reason helps you assess whether the delay was unavoidable—or potentially negligent.

2. Ask About Health Risks of the Delay

Some postponed surgeries are inconvenient but not dangerous. Others, especially for serious conditions like cancer, cardiac issues, or neurological problems, can pose major risks if delayed.

Ask your doctor:

• How will this delay affect my condition?
• Is there a risk of complications or disease progression?
• Are there alternatives (like medication or a different procedure) to manage the issue in the meantime?

If your health could worsen, request the soonest possible rescheduling—or consider alternative providers.

3. Document Everything

Keep a record of:

• Phone calls, emails, or letters about the postponement
• Who made the decision and when
• What you were told about the delay
• Any new or worsening symptoms you experience while waiting

This documentation can be crucial if your health deteriorates and you need to file a malpractice claim later.

4. Contact Your Insurance Provider

Sometimes, delays are caused by administrative hang-ups. Contact your health insurance company to:

• Make sure all required pre-authorizations are in place
• Verify your coverage
• Ask if they can help expedite the rescheduling
  
   

5. Get a Second Opinion

If you're concerned about how the delay will impact your health or if you're losing trust in your provider, consider seeking a second opinion from another doctor or facility. A new provider might be able to:

• Reschedule the procedure sooner
• Offer a less invasive or more immediate option
• Validate (or challenge) the original surgeon’s recommendations
  
   

6. Consider a Legal Consultation If You’re Harmed

If your surgery is postponed and your condition worsens as a result, you may have legal options. You could have a medical malpractice or negligence claim if:

• The delay was caused by a preventable error
• You were not properly informed of the risks
• Your health deteriorated due to the postponement
• A lack of communication or care coordination caused unnecessary harm

At Morgan & Morgan, we review these kinds of cases at no cost to you. If we find that negligence was involved, we can help you pursue compensation.

How Do I Know if I Have a Surgical Malpractice Case?

The only way to know for sure is to consult an experienced medical malpractice attorney. However, you may have a valid claim if:

• You experienced unexpected complications post-surgery
• Your condition worsened instead of improved
• Another doctor later corrected the initial surgical error
• A surgical instrument was left inside you
• You were not properly informed of the risks beforehand

Medical malpractice cases are complex and often require testimony from expert witnesses. At Morgan & Morgan, we work with trusted medical professionals to evaluate your case and determine if your outcome was avoidable.

What Kind of Compensation Can I Receive?

Victims of surgical errors may be entitled to compensation for:

• Medical expenses (including corrective surgeries, rehab, medications)
• Lost wages or reduced earning potential
• Pain and suffering
• Emotional distress
• Loss of enjoyment of life
• Wrongful death damages, if a loved one passed away

In some cases, punitive damages may be awarded to punish egregious negligence or misconduct.

How Long Do I Have to File a Medical Malpractice Claim?

Each state has a statute of limitations for filing a medical malpractice lawsuit. This time limit typically ranges from one to three years from the date of injury or from when the injury was discovered or reasonably should have been discovered.

There are exceptions in certain cases, such as:

• Minors: The clock may not start until the child turns 18
• Fraud or concealment: If a provider covered up the error
• Delayed discovery: For errors that weren't immediately obvious

Because deadlines vary by state and circumstance, it’s crucial to contact a lawyer as soon as possible.

What Evidence Do I Need?

Building a strong surgical malpractice case requires detailed evidence, including:

• Medical records: These document the procedure, who was involved, and what went wrong.
• Second opinions: Another surgeon’s evaluation may confirm the error.
• Photographic or imaging evidence: Such as x-rays showing retained surgical tools.
• Expert testimony: A qualified medical professional explaining how the standard of care was breached.
• Witness statements: From nurses, family members, or others present during your care.
• Personal documentation: Journals, symptom logs, and expense records that show how the error affected your life.
  
   

How Do I File a Lawsuit for Surgical Malpractice?

Filing a malpractice lawsuit involves several steps:

1. Consult an Attorney at Morgan & Morgan

Start by contacting a medical malpractice lawyer. At Morgan & Morgan, we offer free consultations to review your case and discuss your options.

2. Medical Review Process

In many states, a medical expert must first review your claim and confirm that malpractice likely occurred. This may be a legal requirement before you can proceed.

3. Filing the Complaint

If the case has merit, your attorney will file a formal complaint against the responsible parties. This document outlines your allegations and the compensation you’re seeking.

4. Discovery Phase

Both sides exchange evidence, including medical records, expert reports, and depositions.

5. Settlement Negotiations

Most cases settle before trial. We negotiate aggressively to get you the compensation you deserve.

6. Trial (if necessary)

If a fair settlement isn’t possible, our attorneys are ready to fight for you in court. We’ve recovered billions for clients nationwide.

What Makes Morgan & Morgan Different?

Morgan & Morgan is America’s largest injury law firm. We’ve built our reputation by taking on powerful hospitals, insurance companies, and corporations and winning.

When you hire us, you get trial-ready attorneys who aren’t afraid to litigate. You get a team of legal and medical experts focused on your case. And you pay no upfront fees—we only get paid if you win.

Surgical errors don’t just leave physical scars; they leave emotional and financial ones, too. You trusted your doctor to do no harm. When that trust is broken, you deserve answers, accountability, and compensation.

Morgan & Morgan is here to help. With decades of experience, nationwide resources, and a reputation for winning, we’ll stand by your side from consultation to courtroom.

Contact us today for a free case evaluation to learn more about your legal options.