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  1. #1
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    Default Can a Failed Surgery Be Considered Malpractice

    My question involves medical malpractice in the state of: PA

    If additional details are required I will provide them. I have suffered with a chronic condition for about the last year. During that year, I have had at least 5 procedures to "deal with" the immediate physical ailment. Obviously, I did not get better since the same procedure was done 5 times. After the 5th time, my doctor (who is also a surgeon) recommended outpatient surgery to permanently correct the issue. As such, I underwent the surgery and subsequently missed 2 weeks of work due to recovery (most of that time off was unpaid). I have a strong suspicion that the surgery did not resolve the problem and that the underlying issue was not corrected. (I realize I would need to first prove that the surgery was unsuccessful, which will not be difficult given the condition I have and how it presents itself). I would argue my damages are loss of pay due to missing work due to recovery, P&S due to the enormous pain I experienced during recovery and subsequent lifestyle changes I have needed to make in order to ensure the surgeries success, and finally, the out of pocket cost of close to $5,000 (I have a QHDP and $5,000 is my max out-of-pocket for non-covered procedures). Furthermore, the surgery procedure that was done has diminished my quality of life and I will have to deal with the "side effects" of the surgery indefinitely.

    Is this something I could potentially pursue?

    Edit - this probably has no bearing but upon doing my own research into this health issue, I learned that there are several other treatment options available other than surgery. Although most professional medical publications say that my issue is only typically resolved with surgery, I feel that my options were not clearly explained and potential risks/benefits not evaluated. I was in enormous pain, the 5th time this issue has happened, and I just wanted it to be resolved and not be in pain any longer, so I agreed to the surgery before knowing all my other available options. I would argue that it is the surgeon's responsibility to discuss and debate all available options with their patient. After all, I'm not medically trained and have to rely 100% on the medical advice of this particular professional.

  2. #2
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    Default Re: Can a Failed Surgery Be Considered Malpractice

    There is no way to address that scenario without details. Not all surgeries are successful in alleviating a medical condition. The chances of success are normally discussed with the patient in advance of the surgery, and are likely also reflected on the informed consent document you signed prior to surgery. If you think malpractice occurred you need to discuss the details of your case with a malpractice lawyer in your state.

  3. #3
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    Default Re: Can a Failed Surgery Be Considered Malpractice

    Quote Quoting Mr. Knowitall
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    The chances of success are normally discussed with the patient in advance of the surgery, and are likely also reflected on the informed consent document you signed prior to surgery..
    Ok thanks. I plan to speak to someone but wanted to get some preliminary opinions here first. Now that you bring it up, I never signed any consent forms before any of the 5 procedures (which were technically surgery given that incisions were made). Also, I signed a consent form prior to being rolled into the surgery that was blank. I was told the surgeon wouldn't know what he needed to do until he got inside. Unfortunately, I had no say at that point as I was under anesthesia.

  4. #4
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    Jun 2006
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    Massachusetts
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    24,181

    Default Re: Can a Failed Surgery Be Considered Malpractice

    It should also be noted that medicine is not an exact science and just because other options may or may not have been available does not mean that surgery was inappropriate.

  5. #5
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    Default Re: Can a Failed Surgery Be Considered Malpractice

    Quote Quoting cbg
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    It should also be noted that medicine is not an exact science and just because other options may or may not have been available does not mean that surgery was inappropriate.
    Completely understood. I'm not suggesting it is an exact science. I just wish things would have gone differently and that things would have been explained better. When you are in pain like I was you just want it to stop. In my opinion, the surgery was appropriate. The condition I have is well known to almost always require corrective surgery. My issue is that the surgery was literally 19 days ago. I'm still recovering and already am quite sure the same issue is back. More than anything I just want to have it taken care of. I can't have the same procedure done again or I will be responsible for it completely out of pocket.

  6. #6
    Join Date
    Oct 2014
    Posts
    7,549

    Default Re: Can a Failed Surgery Be Considered Malpractice

    A bad outcome does not itself mean that malpractice occurred. A doctor can do everything right and there can still be a poor outcome from a surgical procedure or treatment. Assuming that the decision to recommend the surgery was appropriate (and you say it was) then issue is whether the doctor performed the procedure with the minimum level of skill required by the medical profession for that procedure. If he did, then there won’t be a good malpractice claim despite the apparent lack of success in resolving the problem.

  7. #7
    Join Date
    Nov 2013
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    Pennsylvania
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    806

    Default Re: Can a Failed Surgery Be Considered Malpractice

    Thanks for all the opinions everyone. As always I appreciate the community taking time to answer my questions.

  8. #8
    Join Date
    Jul 2012
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    So Cal
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    854

    Default Re: Can a Failed Surgery Be Considered Malpractice

    Not a legal opinion and for future reference based on my extensive experience living with several chronic health conditions: Yes, informed consent is mandatory. No, you should not have signed a totally blank form. I had 13 surgeries b/n the ages of 29-44 and I educated myself extensively regarding my primary chronic disease. NOBODY is going to be as concerned about your health as you are. Read, research, do your homework, learn everything you can about your ailment. If there are any books out regarding the condition you suffer from, buy them and read. Look online for support groups and gather as much information as possible. Then question the hell out of any doctor who wants to operate. I've gone in with specific questions written down and I take notes.

    Med Mal cases are exceedingly difficult to litigate absent a glaring error such as leaving a foreign object inside your body, amputating the wrong limb, operating on the wrong side, etc.. I've never had a surgeon guarantee that any operation will cure the problem. The closest any ever came was when my neurosurgeon told my that the 4 level anterior cervical discectomy and fusion that I went in for last year should provide much needed relief. But I also had to sign a consent form acknowledging that the surgery could leave me a quadriplegic. And they almost always list death as a potential complication.

    Fun times.

  9. #9
    Join Date
    Jan 2010
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    New Jersey
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    Default Re: Can a Failed Surgery Be Considered Malpractice

    You've been around this forum to long to know that you don't sign blank documents, consent forms, or any paperwork for that matter. Anesthesia doesn't start till you're on the operating table. They may have stuck you and place IV, but anesthesia wasn't administered until you were on the OR table with an anesthesiologist present. But lets say that you were under the influence of anesthesia, how do you remember that the consent form that you signed was blank?
    I'm not a lawyer, but I did stay at a Holiday Inn Express last night.......

  10. #10
    Join Date
    Jul 2012
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    So Cal
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    Default Re: Can a Failed Surgery Be Considered Malpractice

    Quote Quoting Who'sThatGuy
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    You've been around this forum to long to know that you don't sign blank documents, consent forms, or any paperwork for that matter. Anesthesia doesn't start till you're on the operating table. They may have stuck you and place IV, but anesthesia wasn't administered until you were on the OR table with an anesthesiologist present. But lets say that you were under the influence of anesthesia, how do you remember that the consent form that you signed was blank?
    Actually, anesthetia has almost always been administered to me nearly immediately after the insertion of the IV prior to being taken into the OR, typically in the form of Versed. But all consent forms have always been taken care of during the pre-op process a few days prior.

    I have never, ever seen a blank form. They always list the primary surgery, and sometimes the possibility of more extensive surgery based on what is found once they get you in there.

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