The other day I wrote of Notre Dame football coach Charlie Weis suing his doctors based on a failure to recognize life-threatening complications after his gastric bypass surgery. This resulted in Weis bleeding internally for more than a day and ultimately incurred permanent nerve damage to his legs.
The story highlights a sharp issue in surgical error cases: Simply causing an injury during surgery is one thing, but the failure to recognize that injury is something else entirely. The latter is more likely to be provable malpractice than the former.
Those who litigate these cases know the drill well: The potential client calls regarding a bad surgical result. Simply having a bad outcome, though, is not malpractice. If the problem was seen at the time and the surgeon rendered treatment for it, the case may well be rejected by experienced malpractice attorneys so long as the injured body part was in the surgical field.
There are two reasons for the likely rejection of a case regarding a surgical error: First, if for example a surgeon nicks an adjacent organ, close to where s/he is operating, it is the type of surgical risk about which jurors are very forgiving, even if it shouldn’t have happened. But because it is also a risk, it is therefore incumbent on the surgeon to check to make sure such injury did not occur. The failure to recognize that the injury took place is often, therefore, the actionable malpractice.
Other FAQs on New York medical malpractice from this site: