Surgical Errors in Pennsylvania: When Is a Bad Outcome Medical Malpractice?

A bad surgical outcome does not automatically mean medical malpractice. Surgery carries recognized risks, and complications can occur even when the surgeon and medical team provide appropriate care. The legal question is whether a health-care provider departed from the applicable professional standard of care and whether that departure caused the patient’s injury or increased the risk of the harm that occurred.

Potential surgical-error cases can involve the surgeon, anesthesiologist, nurses, hospital, surgical center, or other members of the treatment team. They often require careful review of the operative report, preoperative planning, imaging, anesthesia records, postoperative care, and expert medical opinions.

What Is a Surgical Error Claim?

A surgical-error claim generally alleges that a health-care professional failed to use the skill, knowledge, care, or judgment required under the circumstances and that the failure caused injury.

Examples may include allegations involving:

• operating on the wrong body part or wrong level;
• injuring an organ, nerve, blood vessel, or other structure;
• leaving a surgical instrument, sponge, or other foreign object behind;
• failing to control bleeding;
• improperly placing or using a surgical device;
• performing the wrong procedure;
• failing to recognize an intraoperative complication;
• failing to respond appropriately to changes in vital signs;
• anesthesia errors;
• poor postoperative monitoring;
• delayed recognition of infection, bleeding, or other complications; or
• performing a procedure without legally sufficient informed consent.

Does a Complication Automatically Mean the Surgeon Was Negligent?

No. A complication can occur in the absence of negligence. Some complications are known risks of a properly performed procedure, while others may result from the patient’s underlying condition, anatomy, healing response, or other factors outside the provider’s control.

The fact that a complication is recognized as a possible risk does not automatically defeat a malpractice claim either. The real issue is whether the complication occurred despite reasonable care or because the provider departed from the applicable standard of care.

How Is the Standard of Care Determined?

In most Pennsylvania medical-malpractice cases, qualified expert testimony is required to establish the professional standard of care, whether the defendant departed from that standard, and whether the departure caused harm.

The Medical Care Availability and Reduction of Error Act, commonly called the MCARE Act, imposes specific qualification requirements on medical experts. For standard-of-care testimony against a physician, the expert generally must be substantially familiar with the applicable standard of care and meet specialty-related requirements, subject to statutory exceptions.

In a surgical case, the expert may evaluate:

• the patient’s diagnosis and surgical indication;
• whether surgery was appropriate;
• preoperative imaging and testing;
• the surgeon’s operative plan;
• the technique used during the procedure;
• anatomical structures encountered during surgery;
• intraoperative complications and how they were handled;
• blood loss and hemodynamic changes;
• device placement;
• postoperative orders and monitoring;
• the timing of follow-up imaging or repeat surgery; and
• whether earlier intervention could have avoided or reduced the injury.

What Is the Difference Between a Known Risk and Malpractice?

A known risk is a complication that may occur even when appropriate care is provided. Malpractice requires evidence that the provider failed to meet the applicable professional standard of care.

For example, nerve injury may be a recognized risk of some procedures. That does not mean every nerve injury is unavoidable. Expert review may be necessary to determine whether the nerve was injured despite proper technique or because the surgical approach, dissection, positioning, device placement, or response to an intraoperative event fell below the standard of care.

What If the Surgeon Injured Another Organ or Structure?

Injury to an adjacent organ, blood vessel, nerve, tendon, bowel, ureter, duct, or other structure can occur during surgery. Whether that injury constitutes negligence depends on the procedure, anatomy, recognized risks, surgical technique, and whether the injury was recognized and treated appropriately.

Sometimes the principal issue is not that an injury occurred, but that it was not recognized promptly. A surgical injury that could have been repaired immediately may cause substantially greater harm if diagnosis and treatment are delayed.

What About a Retained Sponge or Surgical Instrument?

A retained foreign object can present a different evidentiary issue from a complex surgical-judgment case. Depending on the circumstances, the occurrence itself may strongly support an inference that proper surgical-count or removal procedures were not followed.

These cases still require careful analysis of who was responsible for counting instruments and materials, whether the retained item caused injury, and which providers or institutions may bear legal responsibility.

Can a Hospital or Surgical Center Also Be Liable?

Potentially. A surgical case may involve claims against individual professionals as well as a hospital or surgical facility.

Liability can depend on employment or agency relationships, nursing conduct, credentialing, policies and procedures, equipment, staffing, postoperative monitoring, infection control, or other institutional responsibilities. The proper defendants and theories of liability must be determined from the facts and records.

What Role Does Informed Consent Play?

Informed consent is related to, but legally distinct from, a claim that surgery was performed negligently.

Under Pennsylvania’s MCARE Act, informed consent is required for surgery and certain other procedures, except in emergencies. The patient must receive information concerning the procedure, material risks, and alternatives that a reasonably prudent patient would require to make an informed decision.

A poor surgical result does not prove that informed consent was inadequate. Conversely, signing a consent form does not give a provider permission to perform surgery negligently. A patient may have a negligence claim, an informed-consent claim, both, or neither depending on the facts.

For additional information, see ZwickLaw’s guide to Pennsylvania Informed Consent Law.

What If the Surgery Was Successful but Postoperative Care Was Not?

Medical malpractice can occur after the operation itself. Postoperative care may be critical to recognizing and treating bleeding, infection, blood clots, respiratory problems, neurological changes, bowel injury, vascular injury, compartment syndrome, or other complications.

Potential issues can include:

• failure to monitor important symptoms or vital signs;
• failure to respond to abnormal laboratory results;
• delay in ordering imaging;
• failure to obtain a specialist consultation;
• premature discharge;
• failure to recognize sepsis or internal bleeding;
• delay in returning the patient to surgery; or
• failure to communicate important postoperative findings.

What Evidence Is Important in a Surgical Malpractice Case?

A complete surgical case review may require substantially more than the operative report. Important evidence can include:

• preoperative office records;
• imaging studies and reports;
• consent forms;
• pre-anesthesia assessments;
• anesthesia records;
• operating-room records;
• nursing notes;
• instrument and sponge counts;
• operative photographs or video, if available;
• device records and implant information;
• pathology reports;
• postoperative laboratory and imaging results;
• discharge instructions;
• follow-up records;
• records from subsequent corrective procedures; and
• expert opinions from appropriately qualified specialists.

Why Does the Operative Report Matter?

The operative report is often central because it describes the surgeon’s findings, technique, complications, procedures performed, and condition at the end of surgery.

But the operative report should not be viewed in isolation. It may need to be compared with anesthesia data, nursing records, imaging, pathology, postoperative records, and later surgical findings. In some cases, the most important evidence is the difference between what was documented during the original operation and what later treatment reveals.

What If a Second Surgery Was Required?

The need for corrective surgery does not by itself establish malpractice. A return to the operating room can be necessary after a non-negligent complication.

However, the second surgery can provide important evidence about what occurred during the first procedure. The later surgeon may identify a perforation, misplaced device, untreated bleeding, retained foreign object, nerve injury, tissue damage, or another condition that helps explain the patient’s deterioration.

How Is Causation Proven?

A plaintiff must prove more than a departure from the standard of care. The plaintiff must also connect the breach to the injury through competent evidence.

In many surgical cases, the causation question is whether the patient’s injury resulted from the alleged error rather than from the underlying condition or a recognized non-negligent complication. Qualified medical experts typically address whether the alleged breach caused the harm or increased the risk of the harm that ultimately occurred.

What Is Pennsylvania’s Increased-Risk-of-Harm Doctrine?

Pennsylvania law recognizes an increased-risk-of-harm theory in appropriate medical-malpractice cases. When negligent conduct increases the risk of the harm that actually occurs, expert testimony may permit the jury to determine whether the increased risk was a substantial factor in producing the harm.

This doctrine can matter where delayed recognition or treatment of a surgical complication makes the eventual injury worse. For a broader discussion of this principle, see Failure to Diagnose in Pennsylvania: When Is It Medical Malpractice?.

How Long Do You Have to Bring a Surgical Malpractice Claim?

Pennsylvania medical-malpractice claims are generally subject to a two-year statute of limitations under 42 Pa.C.S. § 5524, but determining when the period begins can be complicated if the injury or its cause was not immediately known.

The discovery rule may affect the analysis in some cases. A later diagnosis or corrective surgery can be important, but it does not automatically restart the limitations period.

For a detailed discussion, see Pennsylvania Medical Malpractice Statute of Limitations and the Discovery Rule.

Is a Certificate of Merit Required?

Generally, yes. Pennsylvania Rule of Civil Procedure 1042.3 ordinarily requires a Certificate of Merit in a professional-liability action. The rule generally requires an appropriate licensed professional to provide the necessary written support for counsel’s filing.

See What Is a Certificate of Merit in a Pennsylvania Medical Malpractice Case?.

What Should a Patient Do After a Suspected Surgical Error?

1. Obtain appropriate medical care for the current condition.
2. Request complete hospital, surgical, anesthesia, imaging, and follow-up records.
3. Preserve discharge instructions, portal messages, photographs, and communications.
4. Keep records concerning additional treatment, missed work, and out-of-pocket expenses.
5. Write down the sequence of events while the details are still fresh.
6. Do not assume that a poor result alone proves negligence.
7. Seek legal review promptly because limitations deadlines may apply.
8. Allow qualified experts to evaluate both the standard of care and causation.

Frequently Asked Questions

Is every surgical complication medical malpractice?

No. Complications can occur despite appropriate care. A malpractice claim generally requires proof that the provider departed from the applicable professional standard of care and that the departure caused harm.

Does signing a surgical consent form prevent a malpractice claim?

No. Consent to a procedure and its recognized risks is not consent to negligent medical care. Whether negligence occurred is a separate question from whether informed consent was legally sufficient.

Can I have a case if the surgeon says the injury was a known risk?

Potentially. The fact that a complication is a recognized risk does not determine whether it occurred because of negligence. Expert review is often necessary to distinguish an unavoidable complication from a preventable surgical error.

Who can be responsible for a surgical error?

Depending on the facts, potential responsibility can involve a surgeon, anesthesiologist, nurse, physician assistant, hospital, surgical center, medical group, or other provider involved in the patient’s care.

Related Pennsylvania Medical Malpractice Resources

• Pennsylvania Medical Malpractice
• Failure to Diagnose in Pennsylvania
• Pennsylvania Medical Malpractice Statute of Limitations
• Pennsylvania Certificate of Merit Requirements
• Pennsylvania Informed Consent Law

Talk with a Pennsylvania Medical Malpractice Attorney

ZwickLaw represents patients and families in Pennsylvania medical-malpractice and serious-injury matters, including claims involving surgical errors and postoperative complications. Learn more about Matthew R. Zwick, review the firm’s Medical Malpractice practice, or contact ZwickLaw to discuss a potential claim.

This article provides general information and is not legal advice. Surgical-malpractice claims depend on the medical facts, expert evidence, causation, damages, procedural requirements, and current Pennsylvania law.