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Punctures, Perforations and Injuries During Surgery: When is it a Known Risk and When is it Malpractice?

Published on Jul 9, 2010 at 5:32 pm in General Blogs.

We receive a fair number of calls from prospective clients inquiring about whether an internal injury to an organ, nerve or vessel during a surgery on an unrelated area constitutes malpractice. The issue is typically not whether the injury occurred, since insult to “adjacent structures” is a known risk or complication of any surgery and is covered by the typical informed consent form signed by the patient before surgery.

Although the injury itself is a known and assumed complication, the failure to recognize the injury when it occurs typically does amount to malpractice. Therefore, if a bowel or bile duct is cut, or a nerve or blood vessel is severed or compressed, the failure of the surgeon to recognize that the injury occurred, and the failure to act promptly to correct or “mitigate” the injury to reduce the likelihood of worsening or permanent harm, is cause for a claim notwithstanding any informed consent form where the patient otherwise acknowledges the risk and waives a claim.

Injuries to adjacent structures can occur for a variety of reasons. A surgeon’s hand can slip while using sharp instruments to dissect tissue. Electrocautery used to cut tissue can arch and burn other areas not within the immediate field of the surgery. A patient may be mispositioned during the surgery causing compression of nerves and vessels. Or a patient’s body or extremity may be manipulated in such a way to cause injury during joint replacement surgeries. Unfortunately, a patient under anesthesia cannot react to pain and therefore cannot provide verbal ques to the surgeon that something is wrong or that they are in pain.

The attorneys at Belsky, Weinberg & Horowitz have vast experience with surgical injuries of all types, including those to adjacent structures. Should you wish to discuss a possible claim with our attorneys, please contact our office.

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