Breach of Duty in Surgical Errors
Breach of duty is the second element in the four principles of negligence that must be proven in any medical malpractice lawsuit. The first principle — a duty of care — is likely well-established through the doctor-patient relationship. Proving that the duty has been breached is the task your legal team will work on.
The fact that something bad happened does not, in of itself, prove breach of duty. Even the fact there may have been an error does not demonstrate breach. Surgery on the human body has an extremely thin margin of error. Courts do not expect surgeons to be perfect. What the law does expect of surgeons, and of healthcare professionals generally, is that their actions represent a reasonable standard of care.
That means the job of the plaintiff’s legal team is to first establish what reasonable care would constitute in the specific circumstances of an operation. Then, it must be shown that the defendant failed to live up to that standard.
Who decides what “reasonable” is? The answer is the jury. In some personal injury cases, like those involving car accidents, jurors are capable of making their own decisions as to what reasonable care is. They all have experience on the road, but jurors do not have experience as surgeons— expert testimony is needed.
The jury will still make the final decision, but they will be guided by the testimony of medical experts who are familiar with professional norms.
There are some surgical errors that are so egregious that they are called never events — as in, they should simply never happen. But they do, and more often than you might think. A study showed that “never events” happen over 4,000 times per year in the United States. Other cases will require more meticulous legal footwork to establish breach.
The job isn’t done after a breach has been proven. Your legal team must still show that the breach is what caused your injuries. This might seem obvious to you, but the defense attorneys will do everything possible to tie your injuries to a pre-existing condition or some post-surgical activity. Then, you must demonstrate the total financial scope of the damages suffered.
All of this requires legal work performed with a diligent attention to detail. Winning a surgical errors case means your lawyers must be connected with top expert witnesses. Your legal team should have the experience necessary to understand what questions are to be asked and of whom.
Hensley Cloninger & Greer brings all the above to the table. Our staff includes knowledgeable healthcare experts and talented paralegals who work hand-in-hand with attorneys and our clients. We’ve served the Asheville area for over 30 years and have an impressive list of settlements and court verdicts that demonstrate we understand what we’re doing. You’ve been through enough — let us take on the burden of proving your case in court.
Call (828) 383-8414 or contact us online to set up a free consultation.
