Surgical Error Malpractice Cases: What the Record Actually Shows and What It Does Not

Surgical malpractice cases span an enormous range of viability. At one end are never events: wrong-site surgery, wrong-patient surgery, retained foreign bodies. These cases are almost always viable. At the other end are surgical complications that were disclosed risks of a procedure performed within the standard of care.

The majority of surgical malpractice intakes fall somewhere in between.

The Clearest Surgical Cases

**Wrong-site and wrong-patient surgery.** These are never events. They should not occur with proper time-out and verification protocols in place. When they do occur, the operative report, the time-out documentation, and the pre-operative verification records are the key documents. The standard of care argument is clear and the causation is direct.

**Retained surgical foreign bodies.** A sponge, instrument, or other object retained in a patient after surgery is a never event with a defined prevention protocol. When the documentation shows a completed count that was inaccurate, or when count documentation is absent, the standard of care argument is strong.

**Intraoperative injury to adjacent structures.** Cases where a structure adjacent to the operative field was injured during a procedure require analysis of whether the injury was within the accepted complication rate for the specific procedure or represented a deviation from the standard of care. Not every intraoperative injury is malpractice.

Where Surgical Cases Collapse

**The consented complication.** A complication that was disclosed in the consent process, occurred in a procedure performed within the standard of care, and had documented informed consent is the most common reason surgical cases fail. Reviewing the consent documentation is the first step in any surgical case evaluation.

**The inadequate operative note problem.** Operative notes are often brief and non-specific about technical details. The absence of specific technical documentation in an operative note is not the same as evidence of a technical error. This is one of the most common misreads in surgical case evaluation.

The Pre-Operative and Post-Operative Records Matter as Much as the Operative Record

Many surgical malpractice cases are not about what happened in the operating room. Pre-operative evaluation failures and post-operative management failures, including failure to recognize post-operative complications or delayed return to the operating room when indicated, are often where the strongest cases live.

Surgical cases span the full range of viability. Know where yours falls before retaining anyone.