How To Prove a Surgical Error

Surgery is a scary thing–there’s a lot of truth to the adage that says “minor surgery” is a procedure being done on someone else. The last thing you want is for something to go wrong. It’s even worse if you believe that any post-surgical problems could have been prevented by your medical provider.

If you believe you were the victim of surgical malpractice, you may have legal recourse. Before you take action, make sure you have a proper understanding of how to prove a surgical error.

You’re Not Alone: Understanding Surgical Errors

Data from the National Center for Biotechnology indicates, perhaps unsurprisingly, that surgical errors often lead to serious consequences. More than half–60%–of people who suffer from an error require further treatment that might otherwise have been unnecessary. One-third of the victims suffered some type of permanent injury or disability, and 7% of people victimized by surgical error died as a result.

Surgeons can be as susceptible to error as anyone. Their task requires finely cutting very sensitive areas of the human body, where it doesn’t take much of a mistake to result in very serious consequences. In fact, over 15% of surgeons will be sued in any given year.

The reasons for surgical error can be wide-ranging. Perhaps the error occurred during the operation itself because someone cut an organ that was supposed to be untouched. Or, perhaps the anesthesia was not given in the proper dose, or was not done with consideration to patient allergies. Maybe the error came after the surgery, with improper follow-up treatment resulting in damage. Or maybe the error was on the front end, and this was a surgery that simply should not have been performed.

Proving Surgical Error

A surgical error lawsuit would fall under the broad legal practice of medical malpractice. Winning a medical malpractice lawsuit requires proving negligence, which requires proving four different elements were present. These elements are known colloquially as “The 4 D’s.”


The person you are suing must have a duty towards you. In most surgical error cases, this is easy enough to establish. The simple fact that you were on the operating table means you have a professional relationship with your surgeon and with that relationship comes a duty of care. The same goes for the nurses who may be responsible for your ongoing treatment after the surgery.

There could be an exception to the establishment of duty if you are suing on the grounds that the surgery was unnecessary to begin with. Who advised you to undergo the procedure? If it was a surgeon who is (or was) a good friend of yours that advised you to get an angioplasty when you chatted at the Super Bowl party, that is not a professional relationship that requires a duty of care. Even if you talked with him in a more formal setting, there would still need to be proof of a relationship that can be considered professional–e.g., office copayments, insurance, etc.


This means the medical professional deviated from the standard of care that would typically be provided. Another way of putting it is “what would a reasonable and competent person facing the same circumstances have done?”

One challenge in proving surgical error is a concept called system error. If the system itself—as opposed to any one person–failed, then you are a victim of really bad luck, but not medical malpractice.

Systems in the business context a include a reasonable allowance for human error. This is particularly relevant in surgical cases. Perhaps your case is built on the fact the surgeon cut somewhere he shouldn’t have in the operation, and you have the documentation to prove it. But what if that error happened because there was just a fraction of an inch between the damaged organ and the one the surgeon was attempting to cut on? No human being’s motor skills are perfect, especially at that level of precision, and the surgeon might be able to appeal to system error.

Under certain circumstances, this can also apply to other errors. For example, did your nurse read 15 milligrams of your prescribed medication, when it was supposed to be 1.5 milligrams? Is missing the decimal point reasonable human error? A court will have to decide.

You must also show that your condition is not simply an adverse effect. All medications have side effects, some of which are serious. How each person will react cannot be guaranteed in advance. The fact that you had an adverse reaction to a surgical procedure or follow-up medication does not make the medical professionals involved guilty of negligence, as long as the treatment is considered within the normal standard of care.

The need to establish deviation is standard in any case where negligence is involved, be it in heart surgery or simple slip-and-fall cases where someone didn’t shovel their sidewalk. What makes medical malpractice errors different is that they require expert witness testimony to establish, and you can almost certainly expect your lawsuit to be dismissed if these witnesses are not on board.

The reason expert witnesses are required in medical malpractice is the complexity of the subject matter. You don’t need an expert witness to explain standard of care in determining when a reasonable person would have cleared their sidewalk of snow. But the average person cannot speak to what types of errors in medicine are normal human error and what is plain-old incompetence.

Who decides what’s “normal” in a bad diagnosis or faulty interpretation of test results? Who can tell us what deviates from the norm in prescription doses or mistakes in administering them? The answer is: other professionals in the field. Your attorney should be able to connect you with the right expert witnesses for your particular case.


You must prove that the malpractice caused you actual damages. This is another standard of proof that might be difficult to prove in other negligence cases (i.e., was our person who slipped on the sidewalk really injured or just annoyed?). In surgical error cases damages are almost sure to be present and provable.

If you have already established the first two elements of proof–that your surgeon owed you a duty of care and broke from acceptable standards of care-- the very nature of the case makes it likely you suffered some type of damage.

Common types of damages in a case involving surgical error include...

  • The financial costs of future treatments and procedures that might have otherwise been unnecessary.
  • Lost earnings if you were kept out of work
  • The intangible costs of your pain and suffering, to be decided by a court.

Direct Cause

Finally, you must establish that the negligence directly caused the damage. Depending on the circumstances, this may not be easy to prove. People who suffered from different medical conditions prior to the surgery must clearly demonstrate that their injuries came from this particular act of negligence and not from other factors.

This is another area where expert witness testimony will be virtually required. You might know that your chest problems are the result of surgical error and not a side effect of an irregular heartbeat, but can you prove it to a court when the opposing witness is a professional surgeon? Your odds are much better if another surgeon from the community can look you over and testify on your behalf.

There’s No Time to Lose

If you are a victim of surgical error and you believe there’s a chance the surgeon and staff acted outside the typical standard of care, it’s important to act quickly. The state of New York allows a 2 ½ year statute of limitations for bringing any kind of medical malpractice action. The sooner we can get started gathering evidence and consulting with expert witnesses, the better.

Attorney David Kates has over twenty years of experience representing people with medical malpractice claims. He knows what evidence you need and how to get it. If you work with our firm, he can bring a tenacious spirit to your case and fight to make you whole again. Call our office today at (718) 866-3664 orĀ contact us online and let’s go to work on your case.