A surgical error claim is a medical malpractice claim against a surgeon, anesthesia provider, surgical team or hospital whose care before, during or after an operation fell below the accepted standard and caused an injury the patient would not otherwise have suffered. The claim can arise from the operation itself, from the planning that came before it, or from the monitoring that should have followed.
Blank Kim Injury Law represents patients and families across Northern Virginia from our Fairfax office. We obtain the full surgical record, have the care reviewed by qualified surgeons and anesthesiologists, and pursue claims under the Virginia Medical Malpractice Act. Attorney Robert Kim speaks Korean, and our paralegal team speaks Spanish.
A known complication or a surgical error?
This is the first question in every surgical case, and the honest answer is sometimes “a complication.” Consent forms list risks such as bleeding, infection and nerve injury because those things happen even when a surgeon does everything right. The fact that a risk was disclosed does not end the inquiry, though. A listed complication can still result from careless technique, and the response to a complication can itself fall below the standard of care.
The questions we ask include whether the operation was the right one for the patient, whether it was done on the right site with appropriate technique, whether the surgeon recognized an injury during the procedure, and whether the team caught and treated problems in recovery. Qualified surgeons review the operative report, the anesthesia record and the nursing notes to answer them.
Types of surgical errors we investigate
Errors in the operating room
- Wrong-site, wrong-side or wrong-patient surgery, which safety checklists and “time-outs” are designed to stop
- Sponges, clamps, needles or other objects left inside the body
- Cutting or puncturing a bowel, bladder, blood vessel, bile duct or nerve and not recognizing it before closing
- Performing a procedure beyond what the patient agreed to
- Burns from surgical instruments and positioning injuries from long procedures
Anesthesia errors
- Incorrect dosing or a drug given despite a documented allergy
- Failure to monitor oxygen levels and breathing, leading to brain injury from lack of oxygen
- Problems with intubation that go unrecognized
- Awareness during general anesthesia
Errors before and after surgery
- Operating without adequate workup, or on a patient who was not a safe candidate
- Failing to act on signs of internal bleeding, infection, blood clots or a leak after bowel surgery
- Discharging a patient from an outpatient surgery center too early
- Missed signs of nerve compression after spine surgery, which can lead to cauda equina syndrome
Hospitals, surgery centers and office procedures
Surgery in Northern Virginia happens in large hospitals such as Inova Fairfax Medical Campus, in community hospitals, and more and more often in freestanding ambulatory surgery centers in places like Tysons, Reston and Herndon. Cosmetic and minor procedures are also done in private offices.
Where the surgery took place affects who may be responsible. A hospital can be responsible for its own nurses, technicians and employed physicians. Many surgeons and anesthesiologists are independent, with their own practices and insurers. A surgery center has its own staffing, equipment and discharge policies. Sorting out who employed whom, and who had which duty, is part of our early investigation, and it matters for how the claim is presented.
Virginia malpractice rules that apply to surgical claims
Surgical error claims are governed by the Virginia Medical Malpractice Act and related statutes. The rules that come up most often:
| Rule | What it means for a surgical claim | Source |
|---|---|---|
| Statewide standard of care | The surgeon’s care is judged against what a reasonably prudent provider in the same field in Virginia would do. | Va. Code § 8.01-581.20 |
| Expert opinion before service | A qualified expert witness must support the claim in writing before the lawsuit is served. | Va. Code § 8.01-20.1 |
| Filing deadline | Generally two years from the negligent act, with limited exceptions. | Va. Code § 8.01-243 |
| Damages cap | A cap on total damages applies to malpractice cases, adjusted each July 1. | Va. Code § 8.01-581.15 |
One of the limited exceptions to the ordinary deadline involves foreign objects left in the body. Because a retained sponge or instrument may not be discovered for a long time, Virginia treats those cases differently. The exact rule depends on the facts, so have an attorney review the dates. Our guide to Virginia medical malpractice laws explains these rules in more depth.
The records that show what happened in surgery
Patients are unconscious for most of what matters in a surgical case, so the records do the talking. We request:
- The operative report and any addendum written afterward
- The anesthesia record, which logs drugs, vital signs and events minute by minute
- The surgical safety checklist, time-out documentation and instrument and sponge counts
- Pathology reports and imaging taken before and after surgery
- Recovery room and floor nursing notes, and the discharge instructions
- The signed consent form and any notes about the consent discussion
Electronic records keep audit trails showing when entries were made and changed. When a note was written, or rewritten, after a bad outcome, the audit trail can show it.
What a surgical error claim can include
A surgical error often means more surgery: a second operation to remove a retained object, repair a perforated bowel or correct a wrong-site procedure. A claim can seek compensation for the medical care the error made necessary, lost income during a longer recovery, future care and limitations, and the pain and distress of an injury that should not have happened.
Payments from your own health insurance generally do not reduce what the at-fault provider owes, under Virginia’s collateral source rule. Virginia’s cap on total malpractice damages applies to these claims, and we explain its effect in your case review. Value depends on the injury, the recovery and the evidence, not on a formula.
How our Northern Virginia surgical error lawyers work
- Listen first. In a free case review, we hear what procedure you had and what has happened since.
- Collect the whole record. Hospital, surgery center, surgeon’s office, anesthesia group and follow-up providers.
- Surgical review. A qualified surgeon in the same field reviews the care and whether the injury was avoidable.
- Identify every responsible party. Surgeon, anesthesia provider, hospital or surgery center, and any nurse or technician whose error contributed.
- Pursue the claim. Negotiate with the insurers or file suit in the proper Virginia circuit court.
If a family member died after surgery, read about malpractice wrongful death claims. For drug mistakes in the hospital after surgery, see our page on medication errors.
