It is estimated that more than one million surgical procedures are performed each year in Canada, ranging from relatively simple or common operations (such as a colectomy or appendectomy) to highly complex or emergent procedures (such as a craniectomy or a cervical discectomy fusion). Whether simple or complex, every surgery is intended to provide some benefit and carries some risk. There is no such thing as a risk-free surgery, and understanding the risks and benefits of an operation may help you understand when it becomes important to speak with a medical malpractice lawyer if an injury occurs during or after surgery.
Types of Surgical Errors and Injuries in Medical Malpractice Litigation
There are two main types of surgical error cases that are commonly litigated in Canada. The first involves technical errors, or mistakes made during surgery that can result in a serious injury. For example, surgeons who remove a portion of bowel must fashion an “anastomosis,” meaning that they join the two viable ends of the bowel on either side of the portion that was removed. In some rare cases, the surgeon will make a mistake that causes the anastomosis to be under more tension than is safe. This will often lead to anastomotic failure, which allows bowel contents to leak from the surgical site, with devastating and often deadly consequences.
This example is a technical error because it is avoidable. That patient would likely have a case in medical malpractice to sue for damages arising from a surgical error. In this example, the surgeon did not employ the proper technique to protect their patient from significant surgical harm.
The other main type of surgical error often seen in malpractice litigation involves risks that may seem unavoidable. It is unfortunately true that some surgeries harm patients in ways that are not obviously negligent. Using the same example as above, with a patient undergoing bowel surgery and suffering anastomotic failure, the situation will be legally different if the surgeon took all necessary steps to ensure the anastomosis was not under inappropriate tension. However, as the medical literature demonstrates, even where appropriate technique is used, an anastomosis can still leak. This is thought to be caused by certain demographic factors of patients and the particular circumstances of the patient’s anatomy and clinical status, along with the particulars of the operation.
In this example, there is no provable surgical mistake, but the injury is the same. However, even if you suffer an injury that was simply a risk of surgery, this could still lead to a malpractice case if the risk was not disclosed to you before you consented to the operation.
To summarize: a medical malpractice case for a surgical error is often brought by someone who has either (a) suffered harm from a technical mistake made by a surgeon or (b) suffered harm that was a recognized risk of surgery without being adequately informed of that risk and being empowered to make their own decision about their healthcare.
What is Informed Consent for Surgery?
The second type of surgical error – the failure to inform you of a recognized risk of surgery – is often dealt with legally using the term “informed consent.” Every patient in Canada has the right to decide whether to undergo surgery, and Courts recognize that this right is only meaningful if the patient is afforded the opportunity to weigh risks and benefits before choosing what to do.
Doctors are the experts in their field and patients generally trust and rely upon them to provide guidance before undergoing a surgical procedure. Because of this expertise, which most patients do not possess, there is a legal requirement that surgeons disclose the significant risks that are associated with a surgery before obtaining the patient’s consent.
This does not mean they have to disclose every possible risk before surgery begins – otherwise, the consent discussion would be several hours long. In Canada, the law says they have to disclose “material risks.” This means risks that are either (a) common or (b) serious. If the surgeon does not disclose a material risk, then the patient was not provided with the information needed to give truly informed consent.
If a material risk that was not disclosed occurs, this does not guarantee that a legal action for informed consent will be successful. A second requirement in Canada involves the question of what a reasonable person in your situation would have done if the risk was disclosed. If a minimally risky procedure is required to remove a cancerous mass, for instance, you may not be able to prove a case in informed consent because, even if the material risk that occurred was disclosed to you, it is highly likely that consent would have been given in any event.
The Importance of Speaking with a Medical Malpractice Lawyer
When a surgical procedure leaves you with a significant injury, it is important to schedule a free consultation to speak with a medical malpractice lawyer.
The lawyers and staff at BIMMA work everyday to ensure people understand their legal rights when a medical procedure results in harm. In many cases, a poor surgical result means you can no longer work or may require significant ongoing care. It is therefore important that you have an experienced malpractice lawyer review the facts of your case and provide a no obligation opinion on whether you may be able to bring a successful claim in medical malpractice.
At BIMMA, we are happy to offer a free consultation to anyone who believes they may have suffered harm from a surgical error or any other type of medical malpractice. We will review the circumstances of your case and provide a free, honest, and impartial assessment as to whether a medical malpractice claim may be in your best interests.
