Can I file a malpractice suit based on a doctor’s decsion during an operation?

UPDATED: Aug 4, 2011

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Can I file a malpractice suit based on a doctor’s decsion during an operation?

My GYN doctor made a decision while I was under to proceed with cutting away old scar tissue that resulted in puncture holes in my intestine. The original procedure was an outpatient to remove an ovary and benign cyst – non life threatening. Should she have stopped waited until I was awakened and tell me to consult with surgeon to have the scar tissue removed?

Asked on August 4, 2011 California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Not every bad medical outcome is malpractice--in fact, most aren't. Medicine is still far more of an art than a science--there often is no absolutely right or wrong answer, but rather a judgment call to be made, and even when the decision made is a good one, sometimes the patient has a problem.

Malpractice is literally "bad practice"--when the doctor did something which falls below generally accepted standards of care or which represented careless behavior as compared to the hypothetical reasonable doctor in his or her speciality. Therefore, unless it was unreasonable to cut away the scar tissue, it would not be malpractice. It may have been--though often, doctors feel that while someone is already "opened up," that's a good time to clear up other conditions they note, to avoid a second round of surgery.

To see whether this case might be malpractice, you should first consult with an experienced malpractice attorney, who can evaluate the situation in depth; if the attorney feels it may be malpractice, he or she will probably recommend that you consult with another doctor or medical expert, since only one medical care provider (or expert) can really evaluate the decisions made and work done by another.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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