Who is legally liable when a patient develops a post-op infection? In many cases of negligence, both the hospital and doctor can be sued for medical malpractice.
If you suffer a surgical infection following a procedure, there may be any number of causes. Your body may simply have reacted poorly to the surgery and an infection may follow. Worse, though, sometimes the infection may have been avoidable and may not have been caused by your body's natural reaction.
Sometimes, a surgical infection is caused by a mistake the doctor made during surgery, or is caused by unsanitary or unsafe conditions in the hospital or medical facility where the surgery took place. In such instances, you may be able to hold the doctor, hospital or other medical care provider responsible for what happened to you.
Surgical Infection and Medical Malpractice
To prove medical malpractice resulting from surgical infection, you must prove two major things:
- You must prove that there was negligence or a breach of duty on the part of the doctor, hospital or medical care provider
- You must prove that the negligence or breach of duty was the direct or proximate cause of the surgical infection. In other words, the infection would not have happened, but for the negligence.
To prove negligence against either the doctor or the hospital, a reasonableness standard is used. This means that you must show:
- That your doctor's behavior and level of care was unreasonably negligent and that no reasonable, normally skilled or qualified physician would have provided the specific care your doctor provided
- That your hospital's standards or policies for cleanliness, operating room conditions or other aspects of your care was unreasonably negligent and that a reasonable hospital would have had a different policy or provided a higher level of care
Provided you can prove these elements, you may be able to recover damages from both the hospital and the doctor, who could be jointly and severally liable for your damages (in other words, either one of them or both of them could be responsible for paying the bill). The damages the hospital and doctor may be responsible for as a result of a surgical infection include:
- Medical bills to treat the infection
- Lost wages for work you miss because of the infection
- Pain and suffering the infection causes you
- Emotional distress resulting from the infection
- Punitive damages depending on state law
What If the Patient Died?
If the post-op infection played a part in causing a patient’s death, a wrongful death lawsuit may be an option – assuming all the legal elements explained above are present. Every state has a statute that specifically spells out what a wrongful death case looks like, and one of the things these laws define is who may file this kind of case in the state’s court system.
In every state, the patient’s spouse would be able to bring a wrongful death claim. Parents of a minor patient’s would also be able to file a lawsuit – as would minor children of a patient. Where states start to disagree is whether parents of adult children can sue, whether adult children can sue for wrongful death of their parents, whether grown siblings can sue for wrongful death, or whether extended relatives like cousins, aunts, uncles, or grandparents can sue. See How a Wrongful Death Lawsuit Works for more on this issue.
When it comes to wrongful death cases, remember that the person bringing the lawsuit (the relative or personal representative) is asking for compensation for their own losses that resulted from the patient’s death.
The specific categories of damages that are available in a wrongful death case will depend on what the statute says in your state, but typical options include compensation for loss of financial and emotional support, loss of companionship (usually limited to the spousal relationship), and funeral expenses.
See an Attorney
If you have suffered medical malpractice or are experiencing an infection after surgery that you believe may be attributed to the doctor or hospitals carelessness, you need to get the help of a qualified lawyer. Your attorney can assist you in building a case to convince the jury that the hospital or doctor should be held accountable for your infection.
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