Liability When a Surgical Error Causes Nerve Damage

Nerve damage can result from anesthesia, or from the procedure itself - and the surgeon or anesthesiologist could be liable in a malpractice lawsuit.

As the saying goes, there's no such thing as minor surgery. Surgery involves a significant number of risks, and at the same time, never is a patient more vulnerable than during surgery, especially under general anesthesia. While a variety of surgical errors are possible, this article focuses on mistakes that result in nerve damage.

Surgical Mistakes and Resulting Nerve Damage

There are two basic surgical mistakes that can cause nerve damage:

  • a surgeon’s physical error, and
  • an error during administration of anesthesia.

Surgeon’s Physical Error

Often, surgeons must operate in close proximity to nerves. Contact between a surgeon’s instruments and nerves can cause damage. An accidental severing or slicing of a nerve could occur. A surgeon’s instrument may also rub against a nerve, causing inflammation. These types of surgical malpractice are most common.

Error During Administration of Anesthesia

There are three basic types of anesthesia: local, regional and general. A mistake involving administration of any one of the three types can lead to nerve damage.

Local anesthesia is administered with a syringe. The doctor must be careful to avoid direct contact between the syringe and a nerve. Any contact could cause damage.

Regional anesthesia generally involves injection of an anesthetic into the spinal column. The spinal column contains a dense concentration of nerves that transmit signals from the lower extremities to the brain. It is possible for a doctor to damage this cluster of nerves when injecting the regional anesthetic, resulting in debilitating nerve damage.

A mistake in administering general anesthesia can cause nerve damage as a result of the body’s loss of ability to sense discomfort. Generally, when an alert person’s body is in a position that could cause nerve damage if the position is sustained for a long period of time, the person senses discomfort and adjusts. For example, when a person’s leg falls asleep, the person can usually stand up and walk around. When under general anesthesia, the person obviously loses this ability. Thus, nerve damage can result from a doctor’s administering a general anesthesia when a patient is in a position that could result in the pinching of a nerve.

Liability in a Malpractices Case

A patient must prove a number of basic elements to win a surgical malpractice case:

  • the existence of a doctor-patient relationship
  • doctor negligence at some point during the surgical procedure (or immediately pre- or post-op), and
  • harm to the patient caused by the negligence.

Doctor-Patient Relationship

In a surgical malpractice case, the doctor-patient relationship clearly exists, and is almost never at issue in the case. It's evident from the existence of an extensive file of medical records, for one thing.


A surgeon acts negligently by failing to provide the quality of care that other reasonably competent surgeons would have provided under similar circumstances. In a surgical malpractice lawsuit, a patient must establish two things to demonstrate negligence:

  • the proper medical standard of care under the treatment scenario, and
  • the doctor's deviation from that standard of care.

Standard of Care. This is a legal term that refers to the level of competence that most reasonably skilled surgeons would have achieved in circumstances similar to the one in which the alleged malpractice occurred. In the vast majority of medical malpractice cases, establishing the medical standard of care -- showing what should have occurred during this kind of surgical procedure -- requires expert testimony. The patient consults a second surgeon (or some other qualified expert) who offers an opinion as to the proper procedures that the defendant surgeon should have followed.

Breach of the Standard of Care. The next step is to prove that the defendant surgeon breached the standard of care. For example, if the standard of care required an anesthesiologist to administer a regional anesthetic without piercing a nerve, but the anesthesiologist pierced a nerve, the anesthesiologist breached the standard of care.

Harm Caused by the Negligence

In order to win a surgical malpractice lawsuit, a patient must prove that the surgeon’s medical negligence caused foreseeable harm. This harm can take many forms, including:

  • pain and suffering
  • cost of medical bills
  • loss of earning capacity, and
  • loss of the ability to enjoy life’s pleasures in the same way as prior to the injury.

In some cases involving nerve damage, the harm can be very minor. A patient might feel a bit of discomfort for a few days. In such a case, the patient will not be able to recover significant damages. On the other hand, nerve damage can be severe. It can permanently leave a patient without feeling in and/or control over a portion of the body. In such a case where damages are severe and long-lasting, the patient may be able to recover significant compensation.

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