Start your free consultation

SURGICAL MISTAKES

We’re trial lawyers. Our core competency – above everything else – is trying cases to juries. And we specialize in beating giants.

Surgical Mistakes: Understanding Surgical Malpractice Claims in Minnesota

Any type of medical procedure carries some degree of risk. This is especially true for surgical procedures, which often have even a higher degree of risk due to the complexity of the procedures. We focus on trying to eliminate unnecessary risks and avoidable mistakes. When a surgeon does not meet the applicable standard of care – by either taking unnecessary risks or making avoidable mistakes – and your or a loved one is seriously hurt as a result, you may have a strong surgical malpractice case against the surgeon.

Surgical malpractice occurs when your medical professional performs below the accepted standard of care when compared to other professionals in the same practice area performing a similar procedure. If you were harmed as a result of that substandard care during your surgery, you may have a claim for damages.

Medical malpractice claims, especially surgical malpractice cases, are complex. You should not attempt to pursue a claim on your own. Retaining a skilled Minnesota surgery malpractice attorney can make the difference on whether you get the compensation you deserve. 

At Madia Law, focus on taking cases to trial, and getting exceptional results from juries for our clients. When pursuing a medical malpractice case, you want a Minnesota trial lawyer who has the skill, experience, and desire to push your case to trial. Even if you would rather settle – which is fine – you will only get a fair amount if the insurance company knows that you are ready to go to trial and beat them.

Examples of Common Surgical Errors

A surgical error is a preventable mistake that occurs during surgery. When something happens that goes beyond the known risks of surgery, it can rise to the level of medical malpractice. Some of the most common examples of surgery malpractice include:

  • Wrong surgical site: One of the most stunning, but common surgical errors involves operating on the wrong surgical site, for example, if a surgeon operates on the wrong arm or leg. This can happen for a variety of reasons. Perhaps someone made a mistake with the patient’s chart or the surgeon got distracted before beginning the procedure.
  • Nerve damage: Nerve damage is a known risk of many types of surgeries. Nonetheless, you may still have a claim for surgical malpractice if you suffer nerve damage as a result of surgery, if your surgeon: a) took unnecessary risks in your procedure; or b) made avoidable mistakes in your procedure. If your surgeon took unnecessary risks or made avoidable mistakes, then he necessarily failed to meet the appropriate standard of care required for surgeons in our community.
  • Infection: If surgical instruments are not sterilized property, an infection can result.
  • Foreign object: No one wants to think about something being mistakenly left behind in their body after surgery. Unfortunately, this is another common surgical error. Foreign objects left behind can be anything from a piece of gauze to a surgical instrument. 
  • Unnecessary surgery: If you are misdiagnosed, it can lead to a needless surgery that results in unnecessary pain and damage. 

There are many different types of surgical errors that can occur. Don’t assume that if your situation is not listed here, you don’t have a case. Call us for a free consultation. We’ll evaluate your case with our experts, analyze similar cases, and then sit down with you and explain whether we think your case meets the threshold for medical malpractice, and whether we think it’s a case that would be worth your time to pursue.

Every surgical malpractice case is different. Since most surgeries involve a team of professionals, someone other than the surgeon may have caused the error. With most procedures, you have surgical assistants, nurses, and an anesthesiologist. Everyone has an important role to perform. But the more people that are involved, the higher the chance for errors.

Some of the most common reasons for surgical errors include:

  • Poor communication: Serious problems can arise if the surgical team doesn’t communicate well: someone could pass the wrong equipment, relay the wrong medication dosage, or even mark the wrong surgical site.
  • Inexperience or incompetence: If a surgeon lacks experience with the particular procedure – and hasn’t taken the time to get the necessary experience and training before performing the procedure – it can have catastrophic results for the patient. 
  • Fatigue or exhaustion: Fatigue is not uncommon with surgeons. They often work long hours and do back-to-back surgeries. Anyone who is exhausted has the potential to make a mistake, even surgeons.
  • Lack of pre-op planning: Like all good teams, a surgical team must be prepared. Sufficient pre-op planning includes reviewing records, preparing for possible complications, and verifying that all necessary equipment is ready and available.
  • Working under the influence: Unfortunately, stress can lead medical professionals to drink irresponsibly or use drugs. Of course performing any medical procedure – especially a surgery – while under the influence constitutes taking unnecessary risks with a patient’s health.

There are no caps on damages in Minnesota. You are eligible to recover a number of different types of damages for medical malpractice, including:

  • Medical bills and costs
  • Lost income
  • Past bodily and mental harm including pain, disability, disfigurement, embarrassment, and emotional distress
  • Future bodily and mental harm including pain, disability, disfigurement, embarrassment, and emotional distress

In general, you have four years to bring a surgical malpractice claim in Minnesota, but this is not necessarily four years from the date of your surgery. 

That’s because not all surgical malpractice cases are discovered at the time of surgery. If a patient can show that the medical error wasn’t discovered – and could not have reasonably been discovered – at the time the mistake was made, then the 4 year statute of limitations clock might be paused. 

 

You need help from someone who knows what they are doing, to:

a) get all of your medical records;
b) get them to an expert for evaluation;
c) do a legal analysis of your case; and
d) get your case served within the statute of limitations, along with the Certificate of Expert Review. 

Call our Minnesota Surgical Malpractice Lawyer today at 612.349.2723 for a free consultation, or fill out our free consultation form below. 

THE MADIA LAW WAY

We have a process that works in getting exceptional results for our clients. 

We are trial lawyers who prepare every case for trial from Day 1. Investigation and legal research are the first things we do, and we spend a lot of time on them. Because we haven’t filed the case yet, we have complete control – the defendant has no say and we want to use this time wisely.  We interview witnesses that can help us prove the case.  We’ll ask you for all relevant documents in your possession and review those carefully as well.  We also will spend some time conducting legal research about unique issues in the case.  We pull the jury instructions that the judge will ultimately charge the jury with after closing arguments at trial. 

Our next step is typically to send a demand letter to the defendant. In the letter, we thoroughly lay out: the facts surrounding the defendant’s misconduct; the applicable law (including statutory and case citations) that make clear that the defendant broke the law; an analysis of your damages and the defendant’s monetary exposure; a demand for a monetary amount to settle the claim; and an instruction to preserve all relevant evidence, including electronic evidence. The point of this letter is to give the defendant a chance to do the right thing and pay a fair amount before litigation, and to give the defendant an opportunity to present any defenses or evidence it wants us to consider before moving forward.  Sometimes we skip the demand letter if there are strategic reasons to move straight to filing, but we typically give defendants a chance to do the right thing.

If early negotiations fail, great – we file a Complaint and serve the defendant with it. A Complaint is a legal document that states the facts of what happened and alleges how the defendant broke the law. It formally starts the lawsuit.  Many lawyers draft complaints in a general and relatively vague way, just to get it done and filed – because that’s all that’s really required.  We take a different view. We view the Complaint as our first chance to tell your story to the judge, and we take it seriously. So we draft detailed complaints and include legal citations to statutory and judicial authority on unique points.  Sometimes we’ll include a number of exhibits, diagrams, or other demonstrative aids to help the Court understand our claims.  A secondary benefit of this approach is that defense lawyers reading the Complaint can become educated on the problems of their case and the state of the law – sometimes this leads them to reach out to us shortly after service of the Complaint to re-initiate settlement negotiations.  Of course, by that time, the price for settlement has gone up.

Some lawyers view written discovery as a necessary evil – something to get done and out of the way before depositions.  Not us.  Written discovery is a gift and an opportunity.  We spend a great deal of time crafting requests for documents and interrogatories (questions for the defendant to answer in writing) that are specific, detailed, and tailored to get what we need to prove our case.  Many lawyers – even great ones – think written discovery is a waste of time because defense lawyers typically answer them on behalf of their clients and can try to stonewall with legalese and objections.  We view this as a wonderful opportunity.  In our experience, most defense lawyers can’t help themselves when answering discovery: they over-state their defenses and make assertions that their clients will not be able to support in testimony. So we get to commit the defendant to defenses that they can’t back up, leading to contradictions, confusion, and chaos in their depositions later on.  We also use Requests for Admission – which many lawyers don’t.  The Federal Rules and Minnesota Rules of Civil Procedure allow us to ask defendants to “admit” certain facts.  We send them RFAs that are very difficult for them to deny.  Of course, they do it anyway, but that sets them up later for cost and fee-shifting, which the Rules mandate for defendants that deny RFAs that are later proven true.  And usually, we can get the defendants’ own witnesses to admit facts that their defense lawyers denied in RFA.  That’s a great situation that leads to more chaos and confusion on the defense side.

One last point on written discovery – we send multiple waves of it throughout discovery.  We typically send 3 or 4 sets of written discovery requests to defendants throughout discovery.  This compounds the problems for them, because the defense lawyers continue to overstate their defenses, but now run into contradictions from not just the defendant witnesses’ deposition testimony, but also their own previous discovery responses.  This makes for a great record that we can present to the judge at dispositive motions, and use for impeachment at trial.

This is our chance to question relevant witnesses, on the record with a court reporter (we typically videotape important depositions as well). We get to confront the defense witnesses with all of the evidence we’ve developed through written discovery and document production. By this time, the defendant put its witnesses in an impossible position through its written defenses, which are often untrue and indefensible.  So the witness has to either lie to support the defense, or admit it’s not true.  That’s a dilemma that works for our clients either way, no matter which option the witness takes.  We use depositions to expose contradictions, create a record for dispositive motions, lock witnesses into their stories so that we can impeach them later at trial, and sometimes, to show defense lawyers how hopeless their case is.  We often calls from defense counsel shortly after depositions of their clients, seeking to re-start settlement negotiations.

The defendant will usually make a motion for summary judgment after discovery, asking the Court to throw out the case without having a jury trial. Because we’ve hit discovery so hard – both through written discovery and depositions – this is a tough motion for defense counsel to write in our cases.  We draft our response for the Court and now get to bring everything together: the admissions, contradictions, nonsense, and obvious fact disputes that we’ve uncovered through discovery.  We tell a compelling story that wraps everything together for the Court and makes clear that the defense motion has to be denied, and the defendant needs to face a jury for its conduct.

Sometimes, we’ll even make an affirmative motion for summary judgment, asking the Court to grant judgment in favor of our client without a trial. These motions are generally rare for plaintiffs to make, because the defendant can usually point to some fact dispute on its intent or some other factor that necessitates a trial. But we make affirmative summary judgment motions significantly more than is typical for plaintiffs, and that’s because the work we put in during discovery helps build a fantastic record to do so.

After the Court denies the defense motion for summary judgment, the defendant has only 2 options: 1) do the right thing and pay you a fair amount to our client to settle your claim (usually much, much more at this point than the defendant could have paid at the beginning of the case to settle); or 2) face a jury for its conduct and risk an enormous verdict. This is the dilemma that we have been creating and forcing the defendant into for the entire case. We’ll engage in settlement negotiations at this point from a position of extreme strength, mainly because most defendants are (rightly) terrified of facing a jury to defend their conduct.

This is, candidly, our favorite part of the case – why we went to law school: to hold the powerful accountable before juries.  We prepare heavily for trial, including: detailed witness preparation, focus groups, and mock trials.  At this point, the potential outcomes and consequences for the defendant are much more severe than if it simply did the right thing at the beginning of the case and paid a fair amount to compensate our client for its misconduct.  As we advocate to the jury for our client, we’re also mindful of protecting the record so that defendants will be unsuccessful in attacking the verdict in post-trial motions or appeal.

What Our Clients Say