Mistakes can happen to anyone, but when they happen during a surgery the results can be fatal. Determining who is truly at fault can be difficult but it is important when determining blame through a lawsuit. Quite often, the fault lies with the surgeon, anesthesiologist or other surgical staff members. However, there are times when the fault actually lies with the hospital.
Determining who should be held accountable is often a job best left to medical malpractice attorneys who know the law and the expectations of all parties involved. Here are some things to keep in mind if you are faced with this terrible situation and need to decide who is actually at fault.
Pre-Planned Surgeries and Surgical Errors
Most hospitals have contracts with their surgeons that limit the hospital’s liability should the doctor make a mistake during a routine, scheduled surgery. The surgeon is allowed to reserve an operating and is given use of the hospital’s resources, but the hospital will not actually accept liability for mistakes made by the surgeon.
The only way to hold the hospital liable for resulting damages of a mistake made during a planned surgery is to prove that the doctor is an employee, not an independent contractor. While it’s possible in some cases, this link cannot typically be proven. Most states do not require that a doctor be an employee of the hospital. Instead, the doctors partner with certain hospitals to have use of operating facilities. When this is the case, you can only sue the doctor, not the hospital.
There are times when the mistake occurred due to faulty equipment. When this happens, the blame does lie with the hospital rather than the surgeon. If the equipment malfunctioned, the facilities are inadequate or there was another shortcoming that led to the mistake, then the hospital should be found liable. However, the hospital will maintain that the doctor misused the equipment, attempting to keep the blame away from themselves.
Emergency Surgery and Surgical Errors
Emergency surgeries have entirely different dynamics. An emergency surgery is typically undertaken to save the life of the patient and the decision to visit one hospital or another is not made based on the recommendation of the surgeon. In most emergency cases, you will get whatever surgeon happens to be on staff that night and are not given any say in who will operate on you.
Most surgeons working in emergency rooms are not independent contractors with operating privileges at the hospital; they are actual employees of the hospital. When you walk into an emergency room, everything from the nurse to the stitches used to save your life are owned by and are the responsibility of the hospital.