"Never" events during surgery: medical malpractice standards

Medical errors in surgery occur more frequently than people think, according to a study released in the journal Surgery. The study reports that medical errors occur approximately 500 times a year on the average. The report discovered more than 9,700 medical malpractice claims were settled from September 1990 to September 2010.

Common medical errors

Medical errors include leaving foreign objects such as scissors and sponges in the patient's body, performing an incorrect procedure, operating on an incorrect part of the body and - possibly the worst scenario - operating on the wrong patient. During a 10-year period, nearly half of the cases involved leaving foreign objects inside the patient's body, and the object most often left inside was a sponge. Seventeen cases involved surgeons operating on the wrong patient.

These mistakes are commonly referred to as "never" events, a phrase meaning medical errors that should never happen.

Over six percent of medical malpractice cases end with death

Based on data obtained from 2004 to 2010, about one-third of patients experiencing never events suffered permanent injury, and 59 percent of them had a temporary injury. According to the authors of the study, 6.6 percent of the never events ended with the patient's death. Patients that surgeons performed incorrect procedures on had the highest rate of both mortality and permanent injury.

The authors added that these conclusions are derived from the data of paid malpractice claims and do not take into account incidents where the patient did not pursue a legal action or was not paid.

What is the res ipsa loquitur doctrine?

Many victims of medical malpractice choose not to take a legal action, thinking that they do not want to experience any more emotional pain from a subsequent legal proceeding. However, the law understands the difficulty of proving some medical malpractice claims. Therefore, in cases in which a doctor's error was clearly egregious, a legal doctrine called res ipsa loquitur can help an injured patient get a claim past the hurdle of proving that a doctor failed to meet his or her duty of care.

Washington State Courts have recognized the res ipsa loquitor doctrine in medical malpractice cases in which surgeons mistakenly left a foreign object in the patient's body. In order for the doctrine to apply, a patient needs to prove all of the following:

  • The patient did not voluntarily cause or contribute to the injury.
  • The patient cannot obtain evidence of the actual cause of the injury.
  • The injury is a type of injury that usually does not happen without negligence.
  • The injury is caused by an instrumentality or agency over which the medical providers had an exclusive control.
  • No other instrumentality or agent could have caused the injury.

If the patient can prove all of these elements, the jury is allowed to infer negligence on the part of medical providers. Victims of surgical errors may find it helpful to consult with lawyers who have handled medical malpractice cases and who pay close attention to each case.