“Serious and widespread problems exist throughout American medicine. These problems, which may be classified as underuse, overuse, or misuse, occur in small and large communities alike, in all parts of the country, and with approximately equal frequency in managed care and fee-for-service systems of care. Very large numbers of Americans are harmed as a direct result.” Chassin, M.R., Galvin, R., and The National Roundtable on Health Care Quality. Consensus Statement. The Urgent Need to Improve Health Care Quality. JAMA 280(11):1000-1005, 1998 Surgical and Hospital Malpractice Many patients inquire about potential malpractice claims arising from surgical procedures. However, it is important to keep in mind that a bad surgical result does not necessarily equate to surgical malpractice. The standards of Texas malpractice law apply as in any other medical claim: There must have been an error committed; the error must have been one that a reasonable healthcare provider would not have committed under the same or similar circumstances; and, the error must have been the cause of the resulting damages or injuries. Many times, surgery is a last effort undertaken to rectify an otherwise difficult medical condition. Thus, when surgery fails to correct the problem, it is often seen as having been conducted inappropriately. Surgical cases must be thoroughly investigated to determine whether the doctor failed to act reasonably, or whether some other person in the operating room acted unreasonably. Active and aggressive discovery of all persons in the operating room is essential. Some states follow the legal doctrine known as "Captain of the Ship." Under this doctrine, the doctor is the captain, and if mistakes are made, the doctor must answer for those mistakes. Texas does not follow this doctrine. There are numerous healthcare providers in the operating room and each must be examined to determine where and how the mistakes may have been made. The only way to effectively make this determination involves investigating and finding the names of all operating room personnel: the surgeon, assisting surgeons, scrub nurses, technical nurses, anesthesiologists, observers, and any other person that may have been a part of the operating team. In short, there are simply too many areas of potential discussion concerning surgical errors to address in this page; if you have any questions, contact an experienced attorney to discuss the specifics of your situation.

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