Known complications versus surgical mistakes

Every surgery carries risk. Bleeding, infection and slow healing can happen even when the team does everything right. Before surgery, you are told about many of these risks. When one of them happens, it is called a complication.

A complication is not the same as malpractice. The question is whether the team used the care that careful providers in the same field would use. A known risk can still be malpractice if careless work caused it. It is not malpractice if it happened despite careful work.

Signing a consent form means you accepted the listed risks of surgery done with care. It is not permission for care that falls below the standard.

Where surgical errors happen

Surgery is more than the operation itself. Problems can happen at each stage:

Many serious surgical injuries come from the hours and days after the operation. That is why a review looks at nursing notes and vital signs, not just the surgeon’s report.

Who may be responsible

A surgery involves a team. Depending on what went wrong, responsibility may rest with:

• The surgeon.
• The anesthesia provider.
• Nurses in the operating room and on the recovery floor.
• The hospital or outpatient surgery center.

Some of these people are hospital employees. Some are not. Missouri limits when a provider answers for someone who is not its employee (RSMo 538.210). That affects who must be named. The hospital negligence page explains more.

An object left inside your body: a different deadline

Most malpractice claims in Missouri must be filed within two years of the care (RSMo 516.105). There is an exception for a foreign object left inside the body, such as a sponge, clamp or piece of a tool.

For those cases, the two years run from when you found the object, or when you reasonably should have found it, whichever comes first. The ten-year outer limit in the same law still applies.

If a scan shows something that should not be there, write down the date you learned of it. Then read the deadlines and caps guide.

What to do after a surgery goes wrong

1. Get the follow-up care you need, even from a new surgeon.
2. Ask for the full records: the operative report, anesthesia record, nursing notes and discharge papers.
3. Write down what you were told before and after surgery, and by whom.
4. Keep photos of wounds or scars as they heal, with dates.
5. If a second surgery removes an object or repairs damage, ask that the records say so clearly.
6. Do not sign a billing waiver or release without advice.

Your first consultation about a possible malpractice case is free. Harjot Singh Padda, JD can review your timeline and explain what a medical review would involve.

Common questions

Related reading

• Medical malpractice in St. Louis
• Lack of informed consent
• Hospital negligence
• Back and neck injuries