📋 What is Surgical Error?

Surgical errors are preventable mistakes made during surgical procedures that cause harm to patients. While surgery always carries inherent risks, surgical errors go beyond known complications - they occur when surgeons, anesthesiologists, or surgical staff deviate from accepted medical standards, fail to follow safety protocols, or make mistakes that a reasonably competent professional would not make.

Types of Surgical Errors

❌ Wrong-Site Surgery

Operating on the wrong body part (wrong side, wrong limb, wrong organ) or wrong level (wrong vertebra in spine surgery)

👤 Wrong-Patient Surgery

Performing a procedure on the wrong patient due to identification failures or paperwork errors

🩹 Wrong Procedure

Performing an entirely different procedure than intended or medically indicated

🔬 Retained Surgical Items

Leaving sponges, instruments, needles, or other objects inside the patient's body after surgery

💉 Anesthesia Errors

Incorrect dosage, failure to monitor, intubation injuries, or failure to recognize adverse reactions

🩸 Surgical Technique Errors

Damage to adjacent organs/nerves, improper incisions, inadequate hemostasis, or improper wound closure

🔬 Post-Operative Complications

Failure to recognize and treat infections, bleeding, blood clots, or other complications in a timely manner

📰 Pre-Operative Errors

Inadequate patient evaluation, failure to review imaging, operating without proper consent, or poor surgical planning

⚠ "Never Events" - Errors That Should Never Happen

The National Quality Forum defines certain surgical errors as "Never Events" - serious, preventable adverse events that should never occur. These include:

  • ❌ Surgery on the wrong body part
  • ❌ Surgery on the wrong patient
  • ❌ Wrong surgical procedure performed
  • ❌ Retention of foreign object after surgery
  • ❌ Intraoperative or post-operative death in healthy patient
  • ❌ Patient death or serious injury due to contaminated drugs/devices
  • ❌ Burns from equipment during surgery

Key Point: Never Events are so clearly preventable that their occurrence creates a strong inference of negligence. Many qualify for the res ipsa loquitur doctrine.

⚠ California MICRA Rules Apply

Surgical error claims are medical malpractice claims governed by California's Medical Injury Compensation Reform Act (MICRA). Key requirements include:

  • 90-day pre-suit notice under CCP 364
  • Non-economic damages caps under Civil Code 3333.2 (AB 35)
  • Expert witness requirements under Evidence Code 720
  • Strict statute of limitations under CCP 340.5 (with foreign object exception)

☑ Evidence Checklist

Surgical error cases require extensive documentation. Gather these materials to support your claim.

📋 Surgical Records

  • ✓ Operative report (detailed description of surgery)
  • ✓ Anesthesia records (time-stamped vital signs)
  • ✓ Surgical count sheets (sponge, needle, instrument counts)
  • ✓ Pre-operative checklist and time-out documentation
  • ✓ Consent forms and surgical site marking documentation

🔬 Imaging & Lab Results

  • ✓ Pre-operative imaging (X-rays, MRI, CT)
  • ✓ Post-operative imaging showing error (retained object, wrong site)
  • ✓ Pathology reports
  • ✓ Laboratory results (pre and post-operative)

📅 Hospital Records

  • ✓ Complete admission and discharge records
  • ✓ Nursing notes (often contain critical observations)
  • ✓ Incident reports (if filed internally)
  • ✓ Medication administration records
  • ✓ Post-operative complication notes

💰 Damages Documentation

  • ✓ All medical bills (corrective surgery, treatment)
  • ✓ Lost wage documentation
  • ✓ Disability determination (if applicable)
  • ✓ Future care cost estimates

💡 Preservation of Evidence

Critical evidence preservation steps:

  • Send spoliation letter - Demand the hospital preserve all records, imaging, and any retained foreign objects
  • Request actual images - Get the imaging files, not just radiology reports
  • Preserve the foreign object - If a retained item is removed, ensure it is preserved as evidence
  • Photograph injuries - Document scars, deformities, and progression

💰 Recoverable Damages

Surgical error damages can be substantial, especially when corrective surgery, long-term disability, or death results. California law allows recovery of both economic and non-economic damages, though non-economic damages remain capped under MICRA.

Economic Damages (No Cap)

Damage Type Description
Corrective Surgery Costs Additional surgeries required to fix the error (e.g., removing retained object, reconstructive surgery, amputation revision)
Extended Hospitalization Additional hospital stay, ICU time, and monitoring due to complications
Physical Therapy/Rehabilitation Extended or additional rehabilitation to recover function
Lost Wages Income lost during extended recovery or permanent disability
Future Medical Care Ongoing treatment, prosthetics, medication, and monitoring
Home Modifications Wheelchair ramps, modified bathrooms, specialized equipment (for permanent disability)

Non-Economic Damages (Capped)

🌱 AB 35 Damages Cap Schedule

Non-economic damages (pain, suffering, disfigurement, loss of limb function) are capped:

Year Non-Death Cases Wrongful Death Cases
2024 $357,000 $510,000
2025 $364,140 $520,200
2033 $750,000 $1,000,000

📊 Sample Surgical Error Damages Calculation

Example: Wrong-Site Knee Surgery Requiring Corrective Procedure

Original surgery (patient already paid) $0
Corrective surgery on correct knee $85,000
Additional hospitalization (5 days) $35,000
Extended physical therapy (6 months) $18,000
Lost wages (4 months recovery) $48,000
Future knee complications (economist estimate) $75,000
Total Economic Damages $261,000
Pain, suffering, disfigurement (2 unnecessary surgeries) CAPPED $357,000
TOTAL RECOVERABLE DAMAGES $618,000

💡 Multiple Defendants May Increase Recovery

Surgical errors often involve multiple liable parties:

  • Surgeon - Primary operator, responsible for surgical technique
  • Anesthesiologist - Responsible for anesthesia management
  • Hospital - Vicarious liability for staff, responsible for protocols
  • Surgical Assistants/Nurses - May share liability for count errors

While MICRA caps still apply per plaintiff, identifying all responsible parties maximizes potential recovery and settlement leverage.

📝 Sample Demand Letter Language

Use these paragraphs to draft your surgical error demand letter or 90-day notice. Customize the highlighted portions for your specific situation.

90-Day Notice Opening (CCP 364)
NOTICE PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 364

Dear [HEALTHCARE PROVIDER/HOSPITAL NAME]:

Please take notice that pursuant to California Code of Civil Procedure Section 364, [PATIENT NAME] intends to commence legal action against you for professional negligence (medical malpractice) arising from a surgical error that occurred on [DATE OF SURGERY]. This notice is being provided at least 90 days before the filing of said action as required by law.
Wrong-Site Surgery - Factual Allegations
On [DATE], [PATIENT NAME] was admitted to [HOSPITAL NAME] for a scheduled [TYPE OF SURGERY - e.g., arthroscopic knee surgery] on the [LEFT/RIGHT] [BODY PART]. However, the surgical team, including [SURGEON NAME], performed the procedure on the [WRONG SIDE/WRONG BODY PART] instead.

This wrong-site surgery constitutes a "Never Event" as defined by the National Quality Forum and represents a clear deviation from the standard of care. The Universal Protocol for surgical site verification, including pre-operative marking and surgical "time-out" procedures, exists specifically to prevent this type of error. The failure to properly identify and verify the correct surgical site before making the incision represents a fundamental breach of the standard of care.

Under the doctrine of res ipsa loquitur, this injury is of a type that ordinarily does not occur in the absence of negligence, the [BODY PART] was in the exclusive control of the defendants during surgery, and [PATIENT NAME] did not contribute to this error in any way.
Retained Surgical Item - Factual Allegations
On [DATE OF ORIGINAL SURGERY], [PATIENT NAME] underwent [TYPE OF SURGERY] at [HOSPITAL NAME], performed by [SURGEON NAME]. Following the surgery, [PATIENT NAME] experienced [SYMPTOMS - e.g., persistent abdominal pain, infection, unexplained fever].

On [DATE OF DISCOVERY], a [TYPE OF IMAGING - e.g., CT scan, X-ray] revealed the presence of a [RETAINED ITEM - e.g., surgical sponge, laparotomy pad, surgical instrument, needle] inside [PATIENT NAME]'s [BODY AREA]. This retained foreign body required [DESCRIBE CORRECTIVE PROCEDURE OR ONGOING COMPLICATIONS].

Leaving a surgical [ITEM] inside a patient is a recognized "Never Event" and a clear deviation from the standard of care. Surgical count protocols require counting all sponges, instruments, and needles before surgery, during surgery, and before wound closure. The failure to account for all items and the closure of the surgical site with a foreign object remaining inside constitutes negligence under the doctrine of res ipsa loquitur.

Pursuant to CCP 340.5, the three-year limitation period does not apply to foreign object cases. [PATIENT NAME]'s claim is timely as it was discovered on [DATE] and this notice is being sent within one year of discovery.
Anesthesia Error - Factual Allegations
On [DATE], [PATIENT NAME] was administered anesthesia by [ANESTHESIOLOGIST NAME] in preparation for [TYPE OF SURGERY] at [HOSPITAL NAME]. During the procedure, the anesthesia team [DESCRIBE ERROR - e.g., administered an overdose of [MEDICATION], failed to properly intubate, failed to monitor oxygen saturation, failed to recognize signs of malignant hyperthermia].

As a direct result of this anesthesia error, [PATIENT NAME] suffered [INJURIES - e.g., hypoxic brain injury, aspiration pneumonia, dental damage, nerve damage, cardiac arrest, awareness during surgery].

The standard of care for anesthesiology requires continuous monitoring of vital signs, appropriate dosing based on patient weight and medical history, immediate recognition of adverse events, and prompt intervention when complications arise. [ANESTHESIOLOGIST NAME]'s failure to [DESCRIBE SPECIFIC FAILURE] fell below this standard and directly caused [PATIENT NAME]'s injuries.
Damages and Demand
As a direct and proximate result of this surgical error, [PATIENT NAME] has suffered the following damages:

Economic Damages:
- Corrective surgical procedure: $[AMOUNT]
- Additional hospitalization: $[AMOUNT]
- Extended rehabilitation: $[AMOUNT]
- Lost wages: $[AMOUNT]
- Future medical care: $[AMOUNT]

Non-Economic Damages:
[PATIENT NAME] has experienced significant pain and suffering from undergoing [ADDITIONAL SURGERY/COMPLICATIONS], emotional distress, disfigurement, [LOSS OF LIMB/FUNCTION IF APPLICABLE], and loss of enjoyment of life. These damages are subject to MICRA limitations under Civil Code Section 3333.2.

Demand: We demand compensation in the amount of $[TOTAL DEMAND] to fully resolve this matter. This demand is based on the clear liability established by the Never Event that occurred and the substantial damages [PATIENT NAME] has suffered. Please have your malpractice insurance carrier contact the undersigned within 30 days to discuss resolution.

🚀 Next Steps

Surgical error cases often have strong liability profiles, especially for Never Events. Follow this timeline to protect your rights.

Immediate Actions

Step 1: Document Everything

Photograph any visible injuries or scars. Keep a journal of symptoms, pain levels, and limitations. Save all communications with the hospital.

Step 2: Request Complete Medical Records

Request records from the hospital including operative reports, anesthesia records, nursing notes, and count sheets. Also request actual imaging files, not just reports.

Step 3: Send Spoliation Letter

Put the hospital on notice to preserve all evidence including any retained foreign objects, surgical equipment logs, and incident reports.

Step 4: Send 90-Day Notice (CCP 364)

Send certified mail notice to the surgeon, hospital, anesthesiologist, and any other potentially liable parties. This preserves your statute of limitations.

Step 5: Consult a Medical Malpractice Attorney

Surgical error cases often have clear liability (especially Never Events) but require expert testimony and significant resources. Consultations are typically free.

✅ Surgical Error Cases Often Settle

Surgical error cases, especially Never Events, have several factors that favor settlement:

  • Clear liability - Res ipsa loquitur cases are difficult for defendants to defend
  • Hospital risk management - Hospitals want to avoid publicity and trial
  • Insurance pressure - Insurers prefer to settle clear liability cases
  • Documentary evidence - Surgical records often clearly document the error

⚠ Don't Accept Hospital's Offer Without Counsel

Hospitals may offer quick settlements or "write off" bills after Never Events. Before accepting:

  • The initial offer is almost always far below the case value
  • Signing a release waives all future claims
  • You may not yet know the full extent of your injuries
  • Attorney consultation is free - get professional evaluation first

Get a Free Case Evaluation

Surgical error cases often have strong liability. Get a free consultation with an experienced California medical malpractice attorney to evaluate your case.

Free Consultation

California Resources

  • Medical Board of California: mbc.ca.gov - File complaints against physicians
  • CA Dept. of Public Health: cdph.ca.gov - File complaints against hospitals (licensing violations)
  • State Bar Lawyer Referral: calbar.ca.gov - Find certified specialists in medical malpractice
  • Joint Commission: jointcommission.org - Report safety events at accredited hospitals

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