Can You Sue a Doctor After Surgery?

Can You Sue a Doctor After Surgery?

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Can You Sue a Doctor After Surgery

When you or a loved one enters the hospital for surgery, you're putting your life in the hands of doctors, surgeons, nurses, and all other trained medical staff who will take part in your procedure. You assume that they will do everything in their power to make sure everything turns out well. While most of the time this is true, sometimes things don't go according to plan. 
If you or a loved one has suffered a catastrophic injury as a result of medical negligence before, during, or after a surgical procedure, we understand the difficult situation you're in. You want to make sure that you or your loved one will recover and get the treatment they need. Still, you also want to make sure that this never happens again and that you get the compensation you're entitled to.  Morgan & Morgan has been handling Medical Malpractice cases all over the country for literally decades. We are here to help you get the justice you deserve. We can help you determine if you have a claim and who to file a lawsuit against. Contact us today for a free case evaluation, and we can match you with an attorney near you.

How to Prove a Medical Malpractice Claim 

If you hire an experienced and qualified attorney to handle your claim, they will know precisely what they need to show in order to prove your claim in court. However, the more educated you are, the better prepared you will be as well. In order to show malpractice in court, you must prove the following:

  1.      The medical professional owed you a legal duty of care – you were their patient;
  2.      The medical professional breached that duty of care. The law states that doctors and other medical professionals must exercise a level of care that a reasonably prudent medical professional would exercise in the same or similar circumstances;
  3.      You suffered a harm or an injury; and
  4.     That harm or injury was caused by the breach of duty.


  1.      You went to see a doctor to discuss a possible surgery. You decide to go through with it, and that doctor is going to be your surgeon. He now has a legal duty of care.
  2.      During the surgery, the doctor did something negligent or wrong, breaching that duty. Maybe he used a dirty instrument or somehow operated on the wrong part of your body. Let's say he did a hip replacement, but it was the wrong hip. This is absolutely a breach. This might seem extreme, but it should be helpful in understanding when a breach obviously occurs.
  3.      As a result of the surgeon replacing the wrong hip, you clearly suffered harm. Not only did they replace a perfectly good hip, which could cause you a lot of pain and issues down the road in some cases, but they also didn't fix the original problem.
  4.      The harm you suffered was a clear result of the surgeon’s negligence. Even if they did your hip replacement perfectly, there are things you'll likely never do again with a hip replacement versus a natural hip. Additionally, you'll have to go through the trauma of having another surgery to replace the original hip.

Common Issues That Lead to a Medical Malpractice Claim After Surgery

Surgical Errors

Surgical errors happen far more often than anyone would like to admit. If you believe you've been the victim of a surgical error, it's a good idea to contact an experienced attorney right away. You want to make sure you don't miss the deadline to file a lawsuit. It's also important to ensure that you take the steps necessary to give you the best chance to succeed with your lawsuit. Some examples of situations where surgical errors would give rise to a successful medical malpractice claim include:

  •        Poor communication, which can sometimes cause a surgeon to operate on the wrong body part or wrong side
  •        Surgeon fatigue, to the point where they knew they shouldn't have operated but did so anyway.
  •        Improper planning, which causes mistakes to be made during the surgery
  •        Incompetence – the surgeon just doesn't have the appropriate amount of experience to do the surgery but does it anyway.
  •        Neglect during the surgery. For example, a surgeon isn't sure if an instrument is sterilized but doesn't check and uses it anyway
  •        Operating while under the influence of drugs and/or alcohol. 

2. Informed Consent

If a doctor performs a surgical procedure on your or treats you in any manner, they are required to inform you of the known risks of the treatment or procedure. If you're unconscious or there is an emergency, and you're unable to communicate for some reason, they are permitted to initiate treatment or surgery, but they must communicate with you as soon as possible. The doctor should explain the treatment or procedure to you in a way that you can understand it. You should also be given an opportunity to ask questions. If you aren't given enough information about the risks and benefits of a procedure, there's no way for you to make a meaningful decision about your health.

You May Have a Medical Malpractice Claim if There's No Informed Consent

If you or a loved one has suffered an injury during a medical procedure and your doctor never warned you of the possible risks, you might have a medical malpractice claim. If you would have refused the procedure had you been informed of the risks, you might have a viable claim if you suffered an injury as a result of the surgery.
It's important to note that just because you suffer an injury doesn't mean you will be awarded compensation. The injury or harm you suffer must be the type of injury that the doctor was required to inform you about. All medical procedures carry risks of rare complications that doctors may or may not even know about. Sometimes, doctors are not required to disclose these rare possibilities. If you end up suffering from a rare complication that the doctor couldn't have foreseen and they weren't required to discuss with you, the doctor may not be liable.

3. Birth Injuries to the Mother or Child

Most birth injuries are totally avoidable. If you are having a child and you need surgery, like a C-section, in most cases, this should be pretty routine. Unfortunately, medical professionals make mistakes that can cause devastating, life-long effects.

The Most Common Birth Injuries That Occur During C-Sections

-       The Medical Professional Used Forceps Incorrectly

When an obstetrician uses forceps, they must use them correctly. They should be placed around the baby's head correctly and with the appropriate amount of force. If they are used incorrectly, or too much force is used, it can be incredibly damaging and even life-threatening to the baby.

-       Oxygen Deprivation

If the doctor decides that a C-section is necessary, they must ensure that the baby is breathing correctly and receives enough oxygen. If they don't, serious injuries can occur to the baby. A lack of oxygen can lead to Hypoxic Ischemic Encephalopathy (HIE). HIE can cause significant brain damage or death. 

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Get answers to commonly asked questions about our legal services and learn how we may assist you with your case.

Sue a Doctor After Surgery FAQs

  • How Do I Know if I Have a Medical Malpractice Claim?

    Realistically, you probably won't know right away whether you have a medical malpractice claim or not. The first and most important thing you need to determine is whether you've suffered an injury or any harm as a result of possible negligence. If you haven't sustained any injuries or harm, you will not be successful in a medical malpractice case. Generally speaking, it isn't enough that a doctor was negligent. You have to suffer consequences from their negligence to be successful.

  • When Do I Have to File a Medical Malpractice Claim? Could It Be Too Late?

    The statute of limitations, which is the deadline by which you have to file the lawsuit, changes depending on the injuries and depending on which state you're in. It's usually 1-3 years from the date that you suffered an injury or the date that you discovered the injury or should have discovered the injury through reasonable diligence. If you believe you've suffered an injury as a result of surgery and wish to file a lawsuit, it's in your best interest to speak with an attorney right away. 

  • Who Can I Sue for Medical Malpractice?

    When you suffer harm due to medical malpractice, it's possible that many people are liable; it's not just the doctor. If you or a loved one has suffered an injury after surgery due to medical malpractice, you can file a claim against several different people and even the hospital. Possible defendants in a lawsuit include doctors, nurses, physical therapists, mental health professionals, pharmacists, physician's assistants, chiropractors, dentists, and the actual hospital or facility that hired the medical professionals who were negligent before, during, or after your surgery.

  • Can I Sue My Doctor For an Infection After Surgery?

    A: In some cases, yes. In order to prove medical malpractice in relation to an infection, you must prove essentially the same thing as if you are trying to prove any other type of medical malpractice claim. You must show that the doctor or other medical professional was negligent, and you must show that you actually suffered an injury as a result of this negligence. If you've recovered from the infection and it didn't have much of an impact on you, you likely won't be successful. However, if the infection left you with ongoing issues, or you missed a substantial amount of work or have medical bills resulting from the doctor's negligence, you may have a viable claim.

  • Contact Morgan & Morgan Toda

    Medical malpractice resulting from surgery can be complex, but Morgan & Morgan attorneys have been handling these types of cases for decades. We have more than 1,000 attorneys throughout the United States, and we have recovered more than $20 billion dollars for our clients. Contact us today for a free case evaluation.

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