Lack of knowledge and negligence on the part of surgeons are the predominant factors for patients’ post-surgical trauma. However, a lawsuit against medical malpractice is one of the most difficult to win, let alone file, because of a multitude of agreements between the medical boards and practitioners. Signed agreements between the surgeon and the patient also determine the grounds for liability. The identification and description of liability theories for medical malpractice that apply may not necessarily be set in stone. To provide a strong and alleged case, the patient requires the following:
Violation of the standard of care
Compensable injury suffered by patient, and Identification of a proximate cause. When any of the above elements are presented, in a case of medical malpractice, theories of liability below apply most importantly:
Negligence, and Strict liability
Negligence
Negligence is a liability malpractice where the surgeon refuses to follow instructions, or deviates from them, whether from self-recommendation or referral from a medical expert whom examined the patient prior, abandons the standard of care to the patient, or promises specific results from surgery. As for the demonstration of Smith’s fist surgeon, almost immediately the case of negligence can be detected. The surgeon shall brief the patient of the potential benefits and risks of any post-surgical symptoms, and not exclaim any guarantees.
Obligation to continued care for the patient, especially following the surgery, or inform Smith that another medical expert will assume care, is the responsibility of the surgeon. The least the surgeon could have done was seek information on Smith’s pain symptoms, location of pain, and how long these symptoms occurred, then forward the report to Smith’s assigned medical expert at the hospital or family physician. However, the surgeon refused to take any necessary steps on behalf of the Smith, although it is in the patient’s best interest to report any post-surgical symptoms, which the patient did act upon. Assuming the surgeon directly performed the surgery, the case can be referred to active negligence.
Strict Liability
Strict liability is a case where the circumstances are not fully known or do not depend on direct proof as with negligence. If the surgeon performed the surgery under supervision, or followed instructions thereof, it can be classified as vicarious liability, which can also blend into the categories of contributory or enterprise liability. Similarly, these theories fall under the corporate umbrella. Smith could take up the matter with the surgeon’s superior, department, or corporation.
But this type of liability must be an authorized act, as the corporation or employer may not be directly connected to the case, unless ordered by the courts. For example, if Smith underwent pancreatic surgery as suggested by a pancreatic specialist, and the performed surgery included procedures and tools meant only for liver surgery, the corporation can be questioned on behalf of the surgeon qualifications to perform such surgery. Likely the surgeon neglected Smith’s comments because he could claim the symptoms may have occurred from prior circumstances other than the surgery (called a proximate cause), or the result of another isolated injury. It could be the pain was triggered during surgery, especially if the pain originates nearby the surgical area.
Conclusion
In spite of facing difficulties in establishing wrongdoing on the part of the first surgeon, Smith could present a case of liability. The first surgeon may have advised Smith to wait a few more days to see if the pain is persisting, and then follow up with the surgeon before beginning any treatment rather than neglecting Smith altogether. A conference between the medical experts of the same practice would provide suggestions to the assigned surgeon to receive suggestions on how to handle the Smith post-surgery if any complications arose.
The result is Smith can be compensated for the damages caused, except full legal charges may be laid against the first surgeon personally. However, a formal discussion may take place between he (first surgeon) and his authorities based on his negligence and may be subject to penalty or disciplinary action from his representative board of directors rather than the courts.
Negligence and strict liability do play a significant role in this case, however up to approximately 70 percent of their intents, due to the surgeon being registered with a medical board, and various screening channels have to be followed before other parties are to be selected in this case of liability.
