Surgeries have become more and more common as medical science has advanced. Many of the risks of surgery have been mitigated by new technologies and better understanding of the human body. However, errors in surgery still happen today. When a surgeon is careless and makes an error, the effects can be devastating—ranging from infections to death. Below is an overview of lawsuits that can arise from surgical errors.

Errors Caused by Surgeon
When a surgeon operates on a patient, he or she must do so with knowledge and skill equivalent to other surgeons. Careless errors can have tremendous negative implications, and the law imposes this duty to help minimize these errors. During surgery, the surgeon is required to exercise knowledge and skill to protect and treat the patient. Additionally, a surgeon is responsible for the actions of other members of the surgical team, such as nurses and assistants. This doctrine is call respondeat superior, which simply means that the surgeon is responsible for the acts of those he or she selects as assistants. Thus, showing that a nurse was careless can be used to establish liability against the surgeon as well.

Not only must the surgeon’s actions fall below the standard accepted in the medical community, but that carelessness must cause injury to the patient. This can be fairly easy to show, such as when a surgical instrument is left inside a patient and causes pain. However, proving that the breach caused the injury can be more difficult, such as in the case of an infection. An infection can develop even when a surgeon is exceedingly careful or infection can develop because of a blatant failure to sterilize instruments. In these cases, the patient must prove that the infection was more likely than not caused by carelessness, which will require the use of expert testimony. This can result in each side producing “dueling experts,” arguing that the cause is or is not the actions of the surgeon and adding to the difficulty in bringing such a claim.

Errors Caused by Others
Surgeons may be responsible for errors even without direct proof of what the breach was. As discussed above and in Voss v. Bridwell, a surgeon is responsible for carelessness or those under his or her control on the surgical team. Under the same doctrine of respondeat superior, a medical practice may be liable along with a surgeon if the surgeon is found to be an employee of the practice. Under this doctrine, it is important to remember that the patient doesn’t need to choose one or the other when filing. Instead, the patient can bring suit against both the assistant and surgeon, or surgeon and medical practice.

Sometimes a patient won’t be able to specifically identify how the surgeon breached the duty of care. Normally, a patient can’t rely on the fact that he or she was hurt alone to show a breach, as decided in Webb v. Lungstrum. There is one exception under the doctrine of res ipsa loquitor. This doctrine allows an injured patient to present evidence to let a jury infer a breach. The key is that the injury is the kind that would not result absent negligence. In addition, the patient must show she was in the exclusive care of the surgeon (including others on the surgical team) and the plaintiff did not do anything to cause the injury. In Hubbard v. Mellion, a piece of a medical instrument broke off and became lodged in a disc in the patient’s back. It was unclear if the surgeon had breached a duty or not, but the patient was allowed to infer negligence because an instrument does not break absent carelessness.

Errors Caused by Surgical Instruments or Devices
When a surgical instrument or device is defective and injures a patient, a strict product liability claim may exist. Under Kansas law, a product can be defective in three ways. First, the product may be defective in manufacture. Manufacturing defects occur when there is a problem with the product and the product does not conform to the design. A product can also be defectively designed when it poses a risk greater than a consumer would expect. This is true unless the product cannot be made any safer. Finally, a product can be defective for lack of adequate warnings. A manufacturer has a duty to warn of non-obvious dangers, and failure to do so renders the product defective due to hidden dangers.

Generally, any party in a product’s chain of commerce can be held liable for the defective product. This includes the manufacturer, the wholesaler, and the retailer. However, when the product is “purchased” from the hospital, such as prosthetic legs or pacemakers, the hospital is not considered to be within the chain of commerce. This is true even though they may be the party from which the product is bought. The courts are not willing to include hospitals in the chain of commerce because it may discourage hospitals from conveniently providing these devices and products to patients. Relying on these policy reasons, the court disallowed bringing suits for product liability in Hufft v. Horowitz.

In the context of medicine, warnings have a special rule. This is known as the learned intermediary rule, as outlined in Savina v. Sterling Drug, Inc. This relieves the manufacturer of the drug from its obligation to warn a consumer directly. Instead, when the drug is only available via a prescription, the manufacturer can simply warn the doctor of side effects and dangers. The doctor is then liable for passing along necessary warnings to patients. If the doctor fails to do so, only the doctor can be held liable; the manufacturer has satisfied its legal obligation by warning the doctor.

Surgical errors can cause terrible injuries to patients. It is imperative that an experienced attorney be contacted to ensure that injuries are properly redressed. This is very important because injuries that arise from surgical errors require an intensive fact investigation. This investigation ensures that the correct parties are held responsible and all injuries are compensated.