The basic issue in any medical malpractice case is to determine who the negligent person or party was which caused the harm or injury to the patient. In many cases, surgical errors are immediately attributed to the operating surgeon since they’re the ones on top of the procedure. But not all cases are the same. There are certain instances when the surgeon’s errors were caused by the hospital’s negligence.
Hospitals have to observe and follow specific standards of care and medical protocol. However, there are different standards for each situation. The standards which are deemed safe and acceptable have been set by the medical profession. If you or a family member has suffered injury from surgical errors, it’s crucial for medical malpractice lawyers that you hire, to be able to uncover the truth behind this oversight. Here’s a quick guide on how to determine liability in surgical errors.
Medical negligence is the concept used to define when a medical professional’s carelessness injures a patient, to establish if the doctor or the hospital should be held accountable for the injuries incurred by the patient under their care. Here are some of the factors to prove that medical negligence did occur:
- The patient sought medical care from the healthcare institution and was advised to undergo procedures
- There was a violation of the standard of care and medical protocol required under the patient’s circumstances, and the violation could have been committed by either the hospital or the healthcare professionals and staff
- The patient suffered an injury or harm after the said procedure or medical advice by the health professional and was conducted in the hospital
How Liability Is Determined
1. Standard Of Care Or Medical Protocol Breached
The first thing to ask is what standard of care or medical protocol was breached during the surgery or procedure. The answer to this question will determine whether it was the doctor or the hospital that should be held liable for the injuries you or your loved one suffered.
If the standard of care to provide reliable test results, equipment, and hospital staff assistance to render safe medical surgeries and procedures aren’t met, then the negligence may be legally charged to the hospital and its management.
For instance, if the surgical procedure requires that the patient needs to undergo several medical and laboratory tests, such as imaging, blood tests, and some stress tests for them to be considered cleared for surgery, and the one who handled this pre-operation procedure issues the wrong test results to the surgeon who then acts on the basis of the imaging result. The hospital would be held liable if the surgeon operates based on erroneous imaging and test results.
On the other hand, if the standard of care was breached due to the negligence of a specific duty of a doctor, surgeon, or other healthcare professional to render medical surgery and procedures in a safe manner according to accepted medical standards, then the specific doctor will be held accountable for the injuries.
2. Employment Status Of The Doctor
In the majority of surgical error cases, the liability for negligence is often incurred by the doctor or surgeon involved. But another factor that affects in determining the liability in medical malpractice cases involving surgical errors is the employment status of the doctor.
The reason for this is that the hospital as an employer has legal responsibility and duty to ensure that the doctor or surgeon was performing tasks according to the standard of care deemed acceptable in the medical profession and healthcare industry.
But if the surgeon was an independent contractor or medical consultant of the hospital, then the hospital would be able to raise the defense that the surgical errors weren’t committed by one of their employees and that the medical consultant who committed the surgical mistakes should be solely responsible for his or her reckless actions.
3. Reasonable Basis To Believe That The Hospital Is Also Responsible
In some United States (US) jurisdictions, medical malpractice lawyers raise the Theory of ‘Ostensible Agent.’ This line of argument seeks to attach liability to the hospital by claiming that the patient had all the reasons to believe that it was the hospital which rendered the surgery or procedure that caused them harm or injury. If the court trying the case accepts this legal reasoning, then the hospital would also be held liable.
The patient’s lawyer can also argue that the hospital has effective control and supervision over the surgeon or medical consultant. Even if the employment status of the surgeon says independent contractor’ on paper, the patient’s lawyer can counter that the patient didn’t know about these arrangements when they sought care from the hospital. As far as the patient is concerned, they went to such specific hospital and entrusted their life and health because they believed in its credibility, reliability, and what it represents as a healthcare institution.
If the patient wasn’t informed by the hospital management that the surgeon who’ll be performing the operation isn’t an employee of the hospital, then the patient would have decided based on their judgement to continue the procedure or not. In such a situation, there should be a written consent and waiver signed by the three parties involved.
More often than not, surgeons are always held responsible for a large number of medical malpractice cases due to surgical errors. Lawsuits will surely be a consequence if they did violate the acceptable standard of care during surgery. But there are also a lot of instances when the hospital itself is liable for negligence. These are complex issues that vary from case to case. So, if you or someone you know suffered from any kind of surgical error, it’s highly advisable to consult with an experienced medical malpractice lawyer to know your rights and your next action to seek justice.