How Informed Consent Affects Surgical Malpractice Claims

Part of: Surgical Errors →

Understanding Surgical Risks versus Medical Negligence

Undergoing surgery requires tremendous trust in your medical team. You sign consent forms listing potential risks before entering the operating room. However, experiencing a complication after an operation does not automatically mean your surgeon committed malpractice. Understanding the boundary between an inherent medical risk and actionable medical negligence is essential for any injured patient.

Under standard common law, establishing surgical malpractice requires proving four specific legal elements. According to legal analyses by Miller and Zois as well as Justia, these four elements are a professional duty of care, a breach of the standard of care, causation, and actual damages. Every successful surgical error claim relies on establishing these four foundational elements clearly.

A surgery can go wrong even when a doctor performs every step correctly. Human anatomy varies, and human tissue can react unpredictably. Therefore, courts do not hold surgeons accountable for unpreventable medical complications.

The Critical Role of the Prevailing Standard of Care

The core legal difference between a known risk and malpractice comes down to the standard of care. As highlighted in legal guidance from The Olson Law Firm, the legal distinction centers on whether the physician executed the procedure in accordance with the prevailing standard of care. Consequently, a recognized surgical complication does not automatically shield a surgeon if negligence occurred during the procedure.

For example, excessive bleeding or infection is a recognized risk of major surgery. If a surgeon follows proper sterile protocols and carefully seals blood vessels, an infection might still occur without negligence. On the other hand, if a surgeon uses unsterilized tools or ignores active arterial bleeding, that same outcome becomes malpractice.

Medical experts evaluate whether a doctor exercised reasonable skill and learning during surgery. Thus, courts compare the surgeon’s performance against what a reasonably prudent, similarly trained physician would have done under identical circumstances.

How Evidence of Known Risks Operates in Court

Surgeons frequently argue that a patient’s injury was merely an unavoidable, known risk of the procedure. In legal proceedings, expert testimony regarding the known risks and complications of a surgical procedure is admissible to help establish the proper standard of care and evaluate whether a breach took place. This testimony helps juries understand whether an adverse event can occur even when a surgeon exercises proper care.

However, defense lawyers cannot use risk evidence to hide clear errors. While evidence of known complications is admissible, it does not excuse substandard surgical performance. For instance, expert testimony might explain that nerve damage is a known risk of a hip replacement. Nevertheless, if the surgeon accidentally severed a nerve due to reckless technique, the surgeon remains liable for that injury.

Also, empirical studies on medical malpractice litigation outcomes reveal that defendant physicians prevail in 80 percent to 90 percent of jury trials where evidence of negligence is weak, according to research published in PubMed Central. These empirical data demonstrate that courts routinely reject claims when adverse events stem from inherent risks rather than substandard care. Consequently, injured patients need strong evidence showing a clear deviation from accepted medical practices.

Preventable Surgical Errors and Never Events

Some surgical mistakes are so egregious that they can never be excused as ordinary known risks. These horrific errors are known in the healthcare industry as never events. A landmark study conducted by Johns Hopkins University estimates that roughly 4,082 preventable never events occur annually in United States operating rooms. According to reporting on this landmark study by Lowenthal and Abrams, never events are serious patient safety incidents that may constitute strong evidence of negligence, but do not automatically establish breach of the standard of care as a matter of law.

Surgical never events include leaving sponges or surgical tools inside a patient’s body cavity. Also, operating on the wrong body part, performing the wrong procedure, or operating on the wrong patient fall squarely into this category. Consequently, no surgeon can successfully defend a case by claiming that leaving a towel inside a patient was merely a known risk.

These preventable mistakes cause severe harm to patients every year. Data from the United States Department of Health and Human Services National Practitioner Data Bank reveal that 11,440 medical malpractice payment reports were filed in 2023. As detailed in statistical reports by Miller and Zois, these claims yielded substantial settlement payouts, with significant average payouts per claim. These figures underscore the significant impact surgical negligence inflicts on victims and their families.

The Importance of Inadequate Informed Consent Discussions

Informed consent plays a pivotal role in distinguishing between standard risks and actionable malpractice. Before operating, a physician must explain the prospective procedure, potential complications, and reasonable treatment alternatives to the patient. However, signed consent forms do not give a surgeon permission to perform substandard or negligent work.

Additionally, omitting crucial choices during consultations can create legal liability. In an analysis of over 9,500 closed surgical malpractice cases conducted by CRICO and Candello, inadequate informed consent discussions significantly increased the likelihood of a claim resulting in an indemnity payout, as reported by the MPL Association. The analysis noted that failing to address non-surgical alternatives contributed to these financial payouts. Therefore, if a surgeon fails to inform you of safer alternative treatments, that omission itself may constitute malpractice.

Patients must understand that signing a consent form does not strip away their legal rights. A consent form proves you acknowledged inherent risks. It never excuses a surgeon from delivering competent care according to established medical standards.

Steps to Take If You Suspect Surgical Negligence

Determining whether your surgical complication stemmed from medical malpractice requires a thorough, expert investigation. If you suffered unexpected injuries after an operation, you should take proactive steps to protect your health and legal rights.

First, seek immediate corrective medical treatment from an independent doctor. Your health must always remain your top priority. Ensure you get a clear medical assessment of your current physical condition from a neutral specialist.

Next, request complete copies of your medical records and surgical reports right away. These detailed records contain crucial details about what occurred in the operating room. In addition, keep a personal daily journal documenting your physical symptoms, pain levels, and recovery timeline.

Finally, consult an experienced personal injury attorney who specializes in medical malpractice. Medical negligence cases involve complex technical evidence and aggressive hospital defense teams. A skilled attorney will review your medical charts, consult leading surgical experts, and help you secure the compensation you deserve.

Sources

• Justia, Surgical Errors & Patients’ Legal Rights
• Barley Snyder, Pennsylvania Supreme Court Holds that Evidence of Risks and Complications is Admissible
• PubMed Central, Twenty Years of Evidence on the Outcomes of Malpractice Claims