Surgery is one of the most trust-based interactions in medicine. Patients put their lives in the hands of professionals whom they believe will keep them safe, make incisions with precision, and otherwise provide professional, quality care. But when things go wrong in West Virginia operating rooms, the results can be catastrophic. Surgical errors can result in life-altering injuries, substantial medical bills, and complex legal disputes. 

Below, we’ll discuss the most common scenarios in which surgical errors can happen, how West Virginia courts determine whether there was medical malpractice, and how to seek legal recourse when things go wrong.

What Is a Surgical Error?

A surgical error is an objectively avoidable mistake or omission that would not have occurred if the surgical team had exercised reasonable care and diligence. Surgical errors include, but are not limited to, the following:

• Operating on the wrong patient or anatomical site
• Retaining surgical instruments, sponges, or other objects in the patient’s body
• Anesthesia mistakes (e.g., overdose, failure to monitor)
• Damage to organs or nerves due to poor technique
• Failure to diagnose or treat intraoperative complications (bleeding, infection, etc.)
• Sleep deprivation or impairment (e.g., drug use) leading to decreased performance

Surgical errors of any kind are relatively common, and they can have serious consequences. 

Proving Malpractice: When Error Equals Fault

In most cases, not every surgical error will constitute actionable medical malpractice. In West Virginia, four elements must be proven in order to succeed in a medical malpractice lawsuit:

• Duty – A professional duty of care existed between the patient and the medical professional or staff member
• Breach – That duty was breached due to an action or omission that fell outside of what a similarly-trained and experienced professional would have done in the same or similar circumstances
• Causation – The breach of the duty of care caused injury to the patient
• Damages – The patient suffered significant harm, physically, emotionally, or financially

It’s important to note that some surgical errors are considered so inherently unacceptable that they fall under the doctrine of res ipsa loquitur ( which means “the thing speaks for itself”). This is true for certain surgical errors, such as leaving a sponge inside a patient.

Expert Medical Testimony Is Required

Under WV Code § 55-7B-7, medical malpractice lawsuits in West Virginia are required to be supported by expert testimony. To state a claim, the certificate of merit, or proof of medical review, must be signed by a “licensed healthcare professional who is a member of the same health care profession as the defendant health care provider or supplier.”

Simply stated, if a plaintiff (the harmed individual) is bringing a lawsuit against a surgeon for a surgical error, the expert reviewing the claim must also be a surgeon. This is true even for nurse or technician errors that contributed to the outcome. Physicians must have practiced or consulted in the same or a similar specialty area within the last three years.

Pre-Suit Requirements and Statute of Limitations

Pre-Suit Requirements

In West Virginia, patients who wish to file a medical malpractice lawsuit must serve the medical provider with a Notice of Claim, including a Certificate of Merit signed by an expert medical provider.

Statute of Limitations

Generally, malpractice claims in West Virginia have a two-year statute of limitations, measured from the date of the alleged negligent act or, in cases involving continuous negligent acts, the date of the last such act.

Statute of Repose

West Virginia has a statute of repose that bars all medical malpractice lawsuits that are filed more than 10 years after the cause of action accrued. To be clear, this bars lawsuits filed more than 10 years after the incident, even if the statute of limitations hasn’t expired.

Damages and Compensation

Damages are divided into two categories in West Virginia:

• Economic damages, including medical expenses, rehabilitation costs, lost wages, and the future costs of care. Economic damages are not capped.
• Non-economic damages, such as pain and suffering, loss of enjoyment of life, and emotional distress. These are capped at certain dollar amounts, depending on the specific situation.

In certain cases, a court may award punitive damages if the surgical error was the result of willful misconduct or gross negligence.

Safety, Prevention, and Accountability

Facilities across West Virginia have come under pressure to reduce the number of surgical errors that occur. Surgical checklists, safety audits, and updated training procedures have all been put in place over the last decade. This has helped some hospitals and surgical centers lower their error rates and increase safety.

Hospitals are also more accountable than ever before, particularly as surgical errors make their way through the civil justice system. Medical malpractice lawsuits, and their resulting settlements or judgments, are a driving force for better and more careful surgical care. This is particularly true for surgical errors related to poor communication or other administrative or procedural issues that can be addressed at the system level.

What To Do if You Suspect a Surgical Error

If you or a loved one has been injured and believes a surgical error may be to blame, you are encouraged to:

• Gather All Medical Records. This is an important first step in any medical malpractice claim.
• Get a Second Medical Opinion. It’s important to understand the cause of the injury as soon as possible.
• Contact a Skilled Attorney. These cases are highly complex and require specialized legal experience.
• Do Not Wait. The statute of limitations in West Virginia is strict. Do not lose your right to file by waiting too long.

Fight For Your Rights if You’ve Been Harmed by a Surgical Error

A surgical error is the kind of unexpected, unforeseen outcome that can permanently damage the trusting relationship between a patient and their provider. When surgical errors cause harm or injury to patients, the civil justice system can step in. If you have had a surprise or unexpected surgical outcome, it may not be an accident. It could be malpractice. Contact our office today to discuss the particulars of your case.