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Surgical negligence occurs when a surgeon fails to act with reasonable care during surgery, resulting in injury. The plaintiff must prove the surgeon’s incompetence caused recoverable damage. Surgeons must have malpractice insurance, and many states limit non-economic recovery to keep healthcare costs down.
Surgical negligence is a wrongful act that occurs when a surgeon fails to act with reasonable care in performing surgery. A plaintiff bringing a surgical malpractice action must prove that his physician did not act with the competence that a reasonable surgeon would have acted. The plaintiff must then prove that the doctor’s actions caused him some kind of recoverable damage.
Medical malpractice claims, including surgical malpractice claims, are handled within the civil court system. This means that a plaintiff hires an attorney to file a lawsuit. The plaintiff must then prove each element of his case with a preponderance of the evidence. The judge or jury will determine whether the defendant has actually breached her duty and, if so, award the plaintiff damages intended to compensate him for the defendant’s negligence. Often, however, cases settle before going to court, and the defendant offers the plaintiff a lump sum dollar payment for the plaintiff to waive his right to sue.
In the case of a surgical malpractice case, the plaintiff will generally first suffer some type of injury as a result of botched surgery. Something could have gone wrong with the surgery itself, or the doctor could have done something careless like leaving a surgical tool or foreign object inside the patient. In general, any type of surgical error made by a surgeon that a reasonable surgeon would not have made can subject the surgeon to a malpractice case.
Surgeons are required to have medical malpractice insurance to defend against such malpractice lawsuits and to ensure that the plaintiff is fairly compensated if an error or mistake is made during surgery. Typically, the insurer will be the one who actually pays the legal fees for the lawsuit and who then manages the structure of the case. The insurer will pay up to the policy limits.
Due to the high cost of medical malpractice insurance and the prevalence of lawsuits, many states have begun to limit claims for surgical malpractice and other malpractice claims. For example, California limits non-economic recovery to $250,000 US Dollars (USD). This means that while a plaintiff can recover his full medical expenses and lost wages, his pain and suffering, punitive damages and other losses that were not actual and direct monetary losses are limited. There is some controversy about whether this type of tort reform is appropriate, but many states have enacted such rules to try to keep costs down in the health care sector.
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