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Medical Negligence: Surgical Infections and Malpractice

Surgical infections represent the most prevalent type of infection associated with medical care in the United States, according to the U.S. Centers for Disease Control and Prevention. An estimated 157,000 patients in the U.S. end up with surgical site infections annually. The CDC notes that most of these surgical site infections could be prevented. In other words, in a considerable number of cases, a surgical infection arises from the negligence of healthcare providers, including surgeons, nurses, and hospitals.


Common Causes of Surgical Infections


There exist a variety of ways a patient can end up suffering from an infection during or after a surgical procedure. With that noted, there are three common types of infections that are most commonly transmitted to a surgical patient in Oklahoma, and elsewhere in the United States. These are Staphylococcus aureus, Coagulase negative staphylococcus, and enterococcus.


As mentioned previously, a significant percentage of surgical site infections are the result of some type of negligence on the part of a medical provider, including a surgeon, nurse, or even a medical center. There are certain types of missteps made by medical providers that result in a surgery-related infection. These include an improper use of an antimicrobial prophylaxis as well as the failure to address an infection at a remote site in advance of surgery. Another potential scenario that can give rise to a surgical site infection are shaving the site as opposed to clipping hair in the area, which increases the risk for infection.


Not only does inadequate patient preparation result in surgical site infections, but so does improper prep by the surgical team itself. For example, a recurring cause of surgery infection is the failure of surgical team members to properly prepare their hands in advance of a procedure. Another team-related issue is the failure of a member to properly address surgical attire and avoid contamination of it that can transfer to a surgical patient.


The operating room itself can prove to be a culprit when it comes to surgery-related infection. This can include a variety of issues, from improper operating room sterilization to appropriate ventilation. As an aside, contaminated drapes in a surgical suite continue to prove to be an issue when it comes to surgical site infections.


Although this may seem like something of a cliché, foreign bodies get left in a surgery patient’s body with alarming regularity. Of course, the mere fact that this can and does happen is problematic in and of itself. Additionally, foreign objects left in a patient’s body following surgery is a cause of surgery site infection as well.


Surgery site infection can also occur following the conclusion of a surgical procedure when a patient is hospitalized recovering from an operation. This includes situations involving both inpatient and outpatient surgical procedures.


Surgical site infection once a person is removed from the surgical suite or operating room can be caused by many of the same actions and inactions previously described. Added to that list is exposure to infection during the wound dressing changing process.


Compensation in a Surgical Site Infection Medical Malpractice Case


The nature and extent of compensation that you may be able to seek in a surgical site infection medical malpractice case depends upon the facts and circumstances surrounding your infection. In addition, the nature and extent of injuries, damages, and losses also come into play.


With that said, there are certain types of losses for which a medical malpractice attorney typically seeks compensation on behalf of a client. A med mal lawyer is likely to seek compensation for your medical bills and expenses. In addition, an attorney is likely to seek financial recovery for pain and suffering as well as mental anguish and emotional distress. A lawyer is apt to pursue compensation for lost wages.


You very well may be entitled to compensation not only for your existing losses, but for those you reasonably can be expected to face in the future. Due to the serious nature of many surgical site infections, you may need ongoing medical care and treatment for an indefinite period of time. You may suffer significant pain indefinitely. You may be unable to return to work for a more extended period of time. All of these represent examples of losses you reasonably can be expected to face in the future.


Depending on the facts associated with the surgical site infection, and the action or inaction of medical personnel and the hospital, punitive damages might be a possibility on a medical malpractice lawsuit. Oklahoma law permits punitive damages in certain situations in a medical malpractice lawsuit.


Punitive damages are awarded in an Oklahoma medical malpractice lawsuit when the conduct of the responsible party or parties is deemed to be particularly reckless or egregious. In addition to awarding an injured person additional compensation in a lawsuit, punitive damages are also designed to punish the party or parties that engaged in particularly reckless or egregious conduct.


Oklahoma Medical Malpractice Wrongful Death Case


Another type of medical malpractice case that can be brought in a situation involving a surgical site infection is a wrongful death claim or lawsuit. The sad reality is that every year, patients unnecessarily die because of surgical site infections that could have been avoided.


If you have lost a family member due to a surgical site infection, you may be able to pursue a wrongful death case. According to Oklahoma law, the personal representative of the deceased is the individual that can pursue a wrongful death lawsuit on behalf of certain family members. These family members can include a spouse, children, or parents.


The personal representation for the purposes of a wrongful death lawsuit could be the executor named in the deceased family member’s will. In the absence of a will, an Oklahoma court can appoint a personal representative. Oftentimes, this will be a spouse or adult child.


In a wrongful death case, compensation depends on the circumstances surrounding the surgical site infection and related issues. With that said, compensation in an Oklahoma wrongful death case oftentimes is sought for last or final medical bills, funeral and burial expenses, lost companionship, and lost support or income. Punitive damages are also a possibility in an Oklahoma medical malpractice wrongful death lawsuit.


Protect Your Legal Rights with a Skilled, Experienced Oklahoma Medical Malpractice Lawyer


Pursuing a medical malpractice insurance claim, let alone a medical malpractice lawsuit, represent examples of the most complex, challenging types of legal matters in Oklahoma, and across the United States. The first step in retaining a tenacious Oklahoma medical malpractice lawyer is to schedule what is know in the legal community as an initial consultation. Keep in mind that an Oklahoma medical malpractice attorney typically does not charge a fee to consult initially with a prospective client.


During an initial consultation, you have the ability to obtain an evaluation of your case from an experienced attorney. This is likely to include an exploration of the party or parties against whom you may be able to pursue a medical malpractice claim. You will also be able to obtain more information about the compensation to which you may be entitled in your situation. You will also have an opportunity to raise questions you may have about your claim.


Attorney Fees in a Medical Malpractice Case


If you have been injured due to a surgical site infection, you may have balked at retaining legal representation because you have concluded that you cannot afford to hire a lawyer. Keep in mind that a typical Oklahoma medical malpractice lawyer utilizes what is known as a contingency fee agreement with a client.


The way a contingency fee agreement essentially works is that you pay no attorney fee unless your lawyer obtains a favorable insurance claim settlement or lawsuit judgment in your case. In the simplest of terms, you pay nothing unless you win. Each attorney handles attorney fees in their own way. Thus, you need to make sure you understand how a particular fee agreement will work when you initially consult with legal counsel.

Common Surgical Errors: The Difference Between Mistake and Complication

Medical errors are possible even when under the care of the best, most experienced doctors. It is standard practice for a patient and a doctor to discuss any and all risks before a surgery. Usually the patient or his or her guardian signs an informed consent document to confirm that they understand the risks associated with the surgical procedure. However, some issues fall outside of the scope of medical mistakes when they are caused by preventable surgical errors by medical staff.

When undergoing surgery there is always a risk of complications. An individual’s personal medical history and conditions, the medications they take, and how their body responds to the procedure can all influence the outcome. While many (if not most) surgeries are common and safe, doctors cannot always predict how a patient will react to the procedure or the medications required to perform it. For example, a patient with no history of drug allergies may undergo a surgery and have an allergic reaction to the anesthesia medications.

These potential issues fall under the category of surgical complications and are not the fault of the doctor or his or her medical staff. Typically such risks are discussed before a procedure (except in some emergency situations, in which case it is understood that physicians are working in the interest of saving the patient’s life). This process of confirming a patient’s understanding of the risks and making the decision to go forward with the procedure is called “informed consent”.


Surgical complications may include:


  • Anesthesia Reactions: Adverse or allergic reactions to anesthesia medications.
  • Blood Loss: Excessive bleeding during surgery can cause serious risks or even death. Blood transfusions may be required in such events.
  • Blood Clots: Clots which form as a result of the surgery or physical inactivity after surgery. Blood clots or “Deep Vein Thrombosis” can travel through the bloodstream to the lungs or brain and cause serious complications or even death.
  • Death: There is a risk of death with all surgeries, but more invasive or lengthy procedures typically carry the highest risk.
  • Difficulty Breathing: After surgeries requiring a ventilator, some patients may have difficulty breathing.
  • Infections: Infections and the complications that follow are a common risk of surgery.
  • Injury: During surgery, it is possible that body parts near the site of the surgery are damaged.
  • Numbness or Tingling: Surgical incisions can cause nerve damage. Hypersensitivity, numbness, or tingling around the surgical incision may follow as a result.
  • Paralysis: Loss of function (paralysis) in a limb or body part is a rare but possible complication, especially with spine or brain surgeries.
  • Prolonged Recovery: Sometimes due to complications or slow healing, recovery from surgery may take longer than expected.
  • Scarring: Scarring at the incision point is a common medical complication.
  • Swelling and Bruising: Surgical procedures can cause inflammation and bruising at the site of the surgery. This is a part of the body’s natural healing process.
  • Unexpected Results: Some patients respond differently to surgery than others. It is possible for a surgery not to have the expected results or less effective results than hoped for. This may also be the case if there are complications during a procedure and the surgery cannot be completed.


Doctors are trained to take every precaution to prevent such complications. When doctors discuss the risks, properly evaluate the patient, and take all necessary precautions, complications do not fall under the category of medical negligence or malpractice.

In contrast, medical mistakes are preventable errors. Medical negligence is defined as, “the failure to provide a standard level of care.” [1] The example above would be considered negligence if the patient had a known allergy to the anesthesia medication and the physician administered it without reviewing the chart, resulting in an adverse reaction. In such cases, it is advisable for a patient to seek out an Oklahoma Personal Injury Attorney to represent him or her.

The Harvard Medical Practice Study reported that approximately 1 in 4 medical complications is due to negligence [2]. It is estimated that over 4,000 preventable surgical mistakes occur every year [3]. Common medical mistakes include:


  • Misdiagnosis: Giving a patient an incorrect diagnosis or failing to diagnose for a long period of time. This can result in missed opportunities for treatment and recovery. It may lead to unnecessary complications if a missed or delayed diagnosis causes a patient’s condition to worsen without treatment.
  • Childbirth Injuries: While most injuries or conditions that affect newborns are not caused by malpractice, negligence during prenatal care or childbirth may qualify.
  • Medical Errors: This is most common in the administration of prescription medication. It can include prescribing the wrong medication, prescribing the wrong dosage, or malfunctioning equipment administering too much or too little medication.
  • Anesthesia Errors: This may result from an anesthesiologist administering a drug without checking the patient’s medical history, not disclosing known risks of the anesthesia medication(s), not monitoring the patient correctly during the surgery, or administering the wrong dosages.


Some surgery-specific errors are “wrong-site, wrong-procedure, wrong-patient errors” (or WSPEs).


  • Wrong-Patient error (i.e. not verifying the patient’s identity and planned surgery before the operation).
  • Wrong-Site error (i.e. performing surgery on the left hand instead of the right hand).
  • Wrong-Procedure error (i.e. performing the wrong surgery).


Leaving foreign objects in the body (i.e. sponges, gauze, or clamps not removed before the incision is sutured shut) is another error that may occur during a surgical procedure.

These are considered medical mistakes or negligence because they are potentially life-threatening errors that can be easily avoided with standard medical review and best practices.

Surgery always comes with risks, but with proper medical management and treatment, those risks can be minimized or even eliminated. If you have been affected by a preventable surgical complication, contact your Oklahoma Personal Injury Attorney Clark & Mitchell to understand your patient rights and the options available to you to combat medical malpractice.