The Before, During, and After of Surgical Mistakes

by | May 11, 2022 | Injuries, Medical Malpractice

At all phases of medical treatment, surgeons in Kentucky have a fiduciary duty. That’s the highest level of legal responsibility. Doctors and other professionals, like stock brokers and accountants, must completely disregard their own financial and nonfinancial interests and only do what’s best for their clients and patients. A surgical mistake can occur at any point in the process.

Since the duty of care is so high in these cases, it’s easier for a Lexington personal injury attorney to establish a lack of care, or medical negligence. If negligence caused injury, the doctor, or the facility that employed the doctor, is responsible for compensatory damages, like medical bills and emotional distress. Substantial punitive damages are usually available in these cases as well.


A surgeon’s fiduciary duty begins prior to the patient’s initial appointment. Usually, another doctor refers a patient to a surgeon for a consultation. The surgeon must thoroughly review the patient’s file. During this review, the surgeon cannot assume the doctor did everything right. Additionally, the surgeon should research the patient’s condition and consult with colleagues as necessary.

Doctors don’t get paid for these reviews and consultations, at least in most cases. Therefore, many surgeons don’t take this responsibility very seriously. Additionally, many surgeons are very busy. They don’t want to take time away from their friends and loved ones to do homework. That attitude is understandable, but it also violates the duty of care.

Additionally, surgeons must obtain informed consent. Many doctors believe informed consent is a signature on a waiver. But that’s not true. Informed consent is a process. Doctors must thoroughly review the pros and cons of the procedure. This review must be in a language the patient can understand, and not in Medspeak. Moreover, in most cases, doctors must inform patients about available treatment alternatives and explain why, in the surgeon’s opinion, these alternatives are inappropriate.

There’s some question as to whether the surgeon has a legal duty to inform the patient about the right to obtain a second opinion. But one thing is clear. If the patient asks for a second opinion, the surgeon must facilitate and expedite that request. Many surgeons do the opposite, generally because the request for a second opinion offends them.


Thousands of surgical errors occur in the United States every year. IMproper instrument sanitization, operating on the wrong body part, and leaving an instrument inside the patient are the most common such errors.

Typically, surgical teams superheat instruments to sanitize them. If the instrument is too hot, it could seriously burn the patient, especially since internal organs have no protective skin layer. If the instrument isn’t hot enough, dangerous bacteria can multiply on the instrument and infect the patient.

It’s hard to believe that a surgeon could operate on the wrong body part, like amputate the wrong leg. But these errors happen all too frequently, especially in busy operating rooms. A brief pre-procedure file review and team meeting could eliminate such problems. But many surgeons are unwilling to make even this small change.

Roughly these same precautions could eliminate retained surgical body injuries. It only takes a few seconds to count the instruments on the table before the procedure starts, and count them again at the end.

Punitive damages are usually quite high in such cases, since these injuries are so egregious. High punitive damages serve a purpose in this area. Money is the only language that most hospitals and clinics speak. Unless the damage award is eye-poppingly big, the facility won’t force doctors to change the way they approach patient care.


Failure to monitor patients and post-surgical infections are the most common physician errors after a patient goes to a recovery room

Once the surgical procedure ends, many surgeons immediately lose interest in the case. Other members of the surgical team often follow that lead. As a result, they often don’t watch patients carefully enough and they don’t intervene quickly enough if the patient suffers from ill side effects.

Hospital infections are quite common as well, since a hospital is basically a breeding ground for such problems. Either physician negligence or a defective product could cause a surgical infection. We discussed physician liability above. Generally, manufacturers are strictly liable for the injuries their defective products cause.

Injury victims are usually entitled to substantial compensation. For a free consultation with an experienced personal injury lawyer in Lexington, contact the Goode Law Office, PLLC. We do not charge upfront legal fees in these matters.