Surgical error claims in Virginia can be life or death matters. When you have experienced a surgical error, you need experienced representation by your side to ensure that you do not suffer further complications that can stall or prevent your recovery.
Halperin Law Center offers free consultations for Virginia victims of surgical errors. If you need legal representation, contact us today to see how we may be able to get started on your case.
What Is Considered a Surgical Error in Virginia?
A surgical error reaches the level of malpractice and can qualify for a personal injury lawsuit if it breaches the acceptable standard of care and has directly caused you harm. To be clear, every mistake or bad experience escalates to this level in the medical field. However, when it does, surgical errors can leave you with dangerous outcomes and lasting harm from trusting a medical professional.
A medical malpractice attorney can help you make a case for compensation that can help you and your family get back on your feet after a devastating surgical error.
Common Types of Surgical Errors
Some common examples of surgical errors in Virginia include:
- Leaving surgical instruments or foreign objects inside the body
- Poor technique that causes avoidable damage or secondary infections to the surrounding areas
- Failure to monitor vital signs
- Operating in the wrong area
- Operating on the wrong patient
- Operating under the influence
- Anesthesia errors
- Inadequate postoperative care.
Surgical Error vs. Known Complication — What’s the Difference?
Some surgeries do end up causing secondary infections or other complications. In these cases, they may not qualify as surgical errors. A known complication is an understood and unavoidable risk connected to the surgery. The surgery must be medically necessary or consented to by the patient with full knowledge, and the complication is usually a foreseen risk. Some examples that might qualify can include:
- Minor scarring
- Additional bleeding
- Blood clots (Deep Vein Thrombosis) in certain patients
- Certain postoperative infections.
These adverse effects may occur in many surgical cases, even when proper care is taken. However, the line becomes blurry when they are caused by mismanagement, or when a surgery is later deemed medically unnecessary or inadvisable due to your medical chart.
How Do You Know if You Have a Surgery Mistake Lawsuit?
A Virginia personal injury attorney can examine the circumstances surrounding your surgical error and help you understand whether or not it meets the legal threshold for malpractice.
Identifying Medical Negligence During Surgery
If a competent surgeon following all protocols could have expected a similar outcome, then you may not have a surgery mistake lawsuit. On the other hand, if a different surgeon had been able to prevent your complication, then it may qualify.
The Standard of Care in Surgical Procedures
The specific error must also have directly caused your injury. For instance, if you were to receive a botched operation but then separately come down with an infection that is not linked to the surgical error, then the harm done by the infection cannot qualify for compensation.
Steps to Filing Surgical Error Claims in Virginia
Filing surgical error claims involves providing clear and concrete documentation regarding:
- The standard of care owed to you as a patient.
- That standard was breached, and another competent surgeon would not have made the same error under the same circumstances.
- That the harm done was directly connected to the error.
- That the harm is measurable.
Therefore, you will need to provide paperwork and evidence that helps illustrate and solidify all of these links in the chain.
Typically, these cases are very hard-fought and expensive in Virginia. Minor injuries such as small scars or an infection are not usually viable cases. In order to determine this, you should speak to an experienced Virginia medical malpractice attorney.
Obtaining and Reviewing Your Medical Records
Your medical records will be a critical component of your surgical error case in Virginia. Both Virginia state law and federal HIPAA regulations allow you to access copies of your medical records. Your healthcare practice must provide complete records after a request in writing within 30 days.
However, you will need to make sure that you have notified all relevant providers, registered with the required patient portals, and provided authorization in order to receive everything that is required for a surgical error case.
If you are in pain or otherwise unable to do so, an attorney can ensure that you gather all relevant paperwork. Many victims of surgical errors require legal help to file their claims or rely upon family members to communicate with their legal team, simply because the logistical burden is usually too high for someone who is suffering from medical malpractice.
Virginia’s Expert Witness Certification Requirement
Virginia law involves an additional requirement in order to bring a surgical error lawsuit. You will need sworn evidence from an expert witness, another medical professional, who can attest that your situation falls under the category of malpractice. They will review your medical records to make their findings.
The medical expert will be able to provide more context into the standard of care expected for your specific procedure, as well as highlight how and why your surgeon deviated from it. The expert witness certification requirement prevents frivolous lawsuits and also helps build a stronger case for plaintiffs, as well as provides some answers to victims. Halperin Law Center can help connect you to an expert witness who can provide testimony for your case.
Filing a Lawsuit
Finally, you will need to file a formal complaint or lawsuit within the appropriate jurisdiction and timeline. Under Virginia state law, surgical error claims have a two-year statute of limitations. This means that you must file your claim within two years of the date of the injury, unless it is a child who was injured. Consult with an attorney on any potential claim immediately.
Proving Negligence in a Surgical Error Claim
Negligence is a legal term that connects harm done to compensation. Negligence occurs when someone acts or fails to act reasonably with a level of care that another person would exercise under the same circumstances. In surgical error cases, the surgeon, anesthesiologist, assistant, or nurse can all be considered liable in some instances if they act negligently towards the patient under their care.
Establishing the Surgeon’s Duty of Care
Some cases do not meet the breach of duty of care standards. For instance, the Virginia Good Samaritan Law protects off-duty medical professionals who offer assistance in emergencies. In this case, the doctor or nurse has not formally agreed to take you on as a patient, and cannot generally be held liable for adverse effects or failure to save a life during a crisis.
An ER doctor would generally have a duty of care to patients. Even though they become your doctor only in an emergency setting, a doctor-patient relationship is established as soon as you are evaluated in the ER.
Your doctor or surgeon’s records, with whom you have a physician-patient relationship, would be evaluated by the same kind of physician or surgeon to see if there was a breach of the standard of care.
Demonstrating the Breach and Resulting Harm
Medical records, sworn testimony from other medical professionals, written journals or recorded video, and more can all help demonstrate the harm done by a surgical error. You will need to demonstrate not only that the duty of care owed to you was breached, but also that the harm resulted from that error. You will need to show proof of costs incurred due to this harm, such as time off work, additional medical bills, or severe pain and suffering that should not have occurred.
The Role of Medical Expert Testimony
Unfortunately, some legitimate and well-performed surgeries do have adverse outcomes. Because of this, Virginia requires a medical expert to sign off on surgical error cases. The medical expert must affirm that the duty of care owed to you was breached, that the harm done was not reasonable or in line with current medical understanding, and that you should not have suffered this harm had you been seen by another competent medical professional.
Types of Surgical Errors that Lead to Malpractice Claims
While many things can go wrong during surgery, Virginia medical malpractice claims tend to fall into the following categories:
Wrong-Site or Wrong-Patient Surgery
If you were admitted for an operation on one organ but left with another having been removed or otherwise operated on, you have likely suffered lasting harm as well as unnecessary pain and suffering. If secondary complications arise from a wrong-site or wrong-patient surgery, there may be additional damages available.
Anesthesia Errors
Anesthesia is a necessary but at times dangerous element of surgery. An anesthesiologist who makes errors or who fails to monitor vital signs can leave a patient with permanent brain damage, stroke, cardiac arrest, or even death. In these cases, a wrongful death claim may be possible under Virginia law.
Instruments Left Inside the Body
Instruments left inside the body can lead to life-threatening complications such as organ perforation, internal bleeding, severe blockages, and bowel obstruction. They may require an additional surgery to remove, which can also lead to serious complications.
Post-Operative Negligence and Infections
Post-operative negligence is unfortunately common and can lead to dangerous outcomes even from routine surgeries. If you were prescribed the wrong dosages of painkillers or antibiotics, you can suffer from complications that may qualify as medical malpractice. Likewise, bedsores, secondary infections, and failure to monitor vitals during recovery can all be commonly connected to understaffed hospital environments or improperly trained nurses.
Virginia’s Statute of Limitations for Surgical Error Claims
Virginia statute of limitations for surgical errors is generally two years.
Continuous and improper treatment can also stop the clock on the statute of limitations. If you have been receiving ongoing and inappropriate care for the same injury, then the two-year deadline from the date of the initial surgery may be extended. Likewise, if you are incapacitated by the surgery, additional extensions can at times apply.
Minors who have suffered surgical errors must also file within the statute of limitations, which can be as little as two years. Finally, if your doctor took steps to conceal the surgical error that prevented you from meeting the statute of limitations, you may still be able to file.
In all of these cases, the best method of action is to speak with a personal injury attorney well before the initial two-year period is up. If you are a parent or guardian of a minor who has suffered a surgical error, or are the guardian of someone who has been incapacitated due to a surgery, speak to Halperin Law Center at once. Collecting and preserving evidence as soon as possible is the best way to build a strong case for recovery, even if you do not intend to file immediately.
Damages You Can Recover in a Surgery Mistake Lawsuit
The following are examples of both economic and non-economic damages you can recover from a surgical error lawsuit in Virginia:
Medical Expenses and Future Care Costs
The cost of your initial surgery, as well as future corrective medical care, can all be compensated through a medical malpractice lawsuit.
Lost Income and Diminished Earning Capacity
If you have had to take time off work to recover, or if you are unable to return to work in the same capacity, these losses can be included in the settlement.
Pain, Suffering, and Reduced Quality of Life
You may not be able to return to the same hobbies or engage in the same lifestyle you enjoyed before a surgical error. In some cases, your spouse or family life may suffer. These losses can qualify for additional damages payable to the plaintiff.
Virginia’s Medical Malpractice Cap
Virginia statute caps the amount recoverable in medical malpractice cases. The year that your surgery took place will impact the amount that you can be awarded from a settlement. For instance, for malpractice that took place between July 1, 2025, and June 30, 2026, the maximum recoverable amount is $2.7 million.
Contact Halperin Law Center for a Free Consultation About Your Surgical Error Claim Today
If you need help after a surgical error in Virginia, contact Halperin Law Center today. Our surgical error claim lawyers can review the facts of your case and advise you about how to proceed. A consultation is free.
