Liability When a Surgical Error Causes Nerve Damage

Nerve damage can result from anesthesia or the procedure itself, and medical malpractice liability could follow.

By , J.D. · DePaul University College of Law

As the saying goes, there's no such thing as minor surgery. Any invasive procedure (especially one involving general anesthesia) comes with a number of risks. While a variety of surgical errors are possible, this article focuses on treatment mistakes that cause nerve damage and could lead to a viable medical malpractice lawsuit.

How Surgery Can Result In Nerve Damage

There are two basic kinds of health care professional mistakes that can lead to nerve damage during surgery:

  • a physical error by a surgeon or assisting staff, and
  • an error during administration of anesthesia.

Surgeon or Assistant's Physical Error

Often, surgeons must operate in close proximity to nerves. Contact between a surgical instruments and nerves can cause damage. An accidental severing or slicing of a nerve could occur. A surgical instrument may also rub against a nerve, causing inflammation. (Learn more about mistakes during surgery.)

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. Here, it's crucial to avoid direct contact between the syringe and a nerve.

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 an anesthesiologist 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. So, nerve damage can result from administration of a general anesthesia when a patient is in a position that could result in the pinching of a nerve.

Get details on anesthesiologist liability for medical malpractice.

Proving a Surgery/Nerve Damage Medical Malpractice Case

A patient who may have suffered avoidable nerve damage during surgery must typically prove a number of elements in order to win a malpractice case:

  • a health care provider committed medical negligence at some point during the surgical procedure (or immediately pre- or post-op), and
  • harm to the patient resulted from that negligence.

What Is Medical Negligence?

A health care professional commits medical negligence by failing to treat a patient in line with the medical standard of care that applies to a particular treatment scenario. That means the type and quality of care that a similarly-trained and skilled professional would have provided under similar circumstances.

In a lawsuit based on a patient's nerve damage, proving the health care professional's liability means establishing:

  • the proper medical standard of care that would apply under the treatment scenario in question (what a reasonably competent professional would have done to avoid causing nerve damage under the circumstances, in other words), and
  • the defendant health care provider's deviation from that standard (how their action or inaction fell short, causing the patient's nerve damage).

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. That means the plaintiff's attorney consults and retains a second surgeon or anesthesiologist (or some other qualified expert) who offers an opinion as to the proper procedures that the defendant health care professional should have followed, and how the defendant's action or inaction came up short. Learn more about how a medical expert can be critical to a medical malpractice case.

Harm Caused by the Negligence

One of the biggest challenges of winning a medical malpractice lawsuit is showing that any medical negligence on the part of the care provider actually resulted in harm to the patient. That harm could take a number of forms, including:

  • the mistake added to any "pain and suffering" experienced by the patient
  • the mistake resulted in additional medical treatment (including medical bills)
  • the patient's loss of earning capacity, loss of enjoyment of life, and other impacts were increased as a result of the health care provider's mistake.

In some cases involving nerve damage, the harm can be very minor. A patient might feel a bit of discomfort for a few days. Here, the patient might not be able to recover significant damages. On the other hand, significant nerve damage can leave a patient without feeling in and/or control over a portion of the body for extended period (even permanently). Scenarios like that can lead to significant "damages" in legalese.

Any kind of medical malpractice case can be complex, and claims arising from unexpected nerve damage are no exception. For information that's tailored to your situation, talk to a medical malpractice lawyer.

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