💡 Key Takeaways
- Removing the wrong kidney is a clear case of medical malpractice – This type of surgical error, called wrong-site surgery, almost always meets the legal standard for negligence.
- You may be entitled to significant compensation – Victims can pursue damages for pain, medical expenses, lost function, and long-term care needs.
- Legal action must be taken quickly – In Missouri, you typically have two years to file a malpractice claim, so it’s critical to consult an attorney as soon as possible.
One of the most grave mistakes a doctor can make is surgically removing the wrong body part or organ.
Although this seems like an avoidable mistake, it happens with surprising frequency. Cases involving the wrong body part of organ removal can result in severe life-long injuries and changes to patient quality of life, including the need for ongoing medical care.
If a surgeon wrongfully operated on you, it is important to immediately take action by consulting with an experienced medical malpractice attorney. You could be entitled to significant compensation.
How Common Are Surgical Errors?
Although hospitals do their best to prevent medical errors, the number of premature deaths associated with preventable patient harm is estimated at more than 400,000 annually.
Many hospitals are moving toward better systems, such as electronic barcodes on instruments and materials, but mistakes still happen.
In a scenario involving wrong-site surgery, increasing communication with healthcare providers, family, and patients about the possibility of such mistakes alerts everyone to double and triple-check to avoid grave mistakes.
One such check is a timeout, which is a preoperative pause involving all surgical team members.
Timeouts must occur when the patient is on the operating table before surgery begins. A timeout is done to ensure the correct site, correct procedure, and correct patient will minimize costly mistakes.
These surgical mistakes are referred to as “wrong-site, wrong-procedure, wrong-patient errors,” and because they should never happen, they are also called “never events.” And while all medical malpractice lawsuits are complex, those arising from never events are generally more straightforward.
Do I Have a Medical Malpractice Case when a Surgeon Removes the Wrong Organ, Like a Kidney?
To receive compensation from a surgeon in a personal injury lawsuit, the patient must establish that their injuries were due to the surgeon’s negligent, reckless, or intentional actions.
Malpractice generally concerns a professional acting according to the prevailing professional standard of care. Proving a professional doesn’t meet their standard of care is a part of proving they’re negligent.
Unfortunately, medical malpractice claims are not so straightforward that a layperson can say, “My doctor was negligent!” They have to prove certain elements required by Missouri law.
To prove medical negligence or malpractice, a patient must establish the following elements:
- The patient must prove that an official doctor-patient relationship existed.
- The patient must prove that the doctor breached the duty owed to the patient.
- The patient must prove that the doctor’s breach led to the patient’s injury.
- The patient must prove that this injury resulted in damages.
The first element is generally easy to prove. For example, when you have surgery, you will invariably sign a consent form allowing the surgeon to operate on them. The consent proves their doctor-patient relationship.
While harder to prove, the second element is relatively straightforward in a botched surgery case.
Proving that the doctor breached the duty of care means that the patient must show the healthcare provider should have provided the level of care another healthcare provider with the same training and experience would provide under similar circumstances.
This is not a conclusion a layperson is qualified to reach. The patient must consult with a different doctor about their case, and that doctor will likely need to testify or write an opinion—called an expert opinion.
Expert opinions from medical providers in the same or similar specialty can help establish the standard of care and determine if the defendant violated that standard.
Would other surgeons make a similar mistake? Given the precautions in place and statistics demonstrating most surgeries go fine, it’s fair to say the answer is probably no.
Of course, there is always the possibility that the mistake was unavoidable. Your attorney and the doctor’s attorney will investigate the case’s circumstances to determine whether or not it was truly avoidable.
The third and fourth elements are easy to prove as long as medical records document the patient’s health picture before, during, and after the surgery.
The medical records will help link the doctor’s mistake and the patient’s harm. An attorney will help the patient collect medical records to substantiate these elements.
What About Compensation?
Once the patient can prove the elements above, the patient must prove that the harm caused by the doctor left them with injuries and damages related to the surgery. Damages could be physical and psychological pain, medical expenses, and pain and suffering.
In Missouri, you may also recover lost wages if they were a direct result of your medical malpractice injury.
If you can no longer work due to your injury, you can seek compensation for the wages you would have earned if you could continue working.
To be eligible for lost wage and future wage compensation, you must provide evidence that shows a causal link between your injury and your inability to work.
In many medical malpractice cases, settlement negotiations may be the best option for resolving the case (instead of going to trial) and getting compensated sooner.
Settlement negotiations are discussions between the parties involved in a lawsuit in which they attempt to agree on the compensation the doctor, or the insurance company, must pay the patient in exchange for dismissing the lawsuit. Settlement negotiations can be conducted at any point in the legal process.
Medical Malpractice Attorney
Cases involving the wrong patient or removing the wrong body part or organ can result in severe life-long injuries and changes to the patient’s quality of life, including the need for ongoing medical care or job loss.
If you believe you have a case, the attorneys at Dempsey Kingsland Osteen can help.
Our firm has earned Super Lawyer status eight years in a row and has been voted “Best of the Bar” by the Kansas City Business Journal. Let us help you get the compensation you deserve for your medical lawsuit.
The legal team at Dempsey Kingsland Osteen works to ensure that the injured are fully compensated for their lasting injuries from medical malpractice or other negligence. We push for comprehensive damages that anticipate the long-term needs of our clients, rather than taking a quick settlement out of convenience.
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