You are undergoing surgery on your abdomen in a hospital. The doctor allows you to return to your home the next day. Once at home, you feel pain at the level where the operation took place. So you call your doctor who does not answer. You go to the emergency room and are informed that your abdomen became infected with the flesh-eating bacteria because the surgeon had not sterilized the instruments.
What remedies are available to you when you are a victim of such situations? Did the doctor act negligently? If so, how is it possible to prove it?
Mr. Lambert explains the rules of law concerning surgical errors and early hospital discharge using examples from case law.
Elements of civil liability
The usual readers of our legal capsules probably already know that to succeed in your civil liability claim, you must successfully demonstrate three important elements: fault, harm and causation.
In cases of surgical negligence, the harm suffered will be, most of the time, of a corporeal nature and occasionally, moral. In order to successfully demonstrate the existence and extent of the damage incurred, it is strongly recommended to resort to expert testimonies and reports. This will add credibility to your case and boost your chances of success in court.
Once the harm has been established, it will be necessary to determine whether the physician’s action directly caused the damage and whether it represents a fault on the part of the doctor. Again, experts, including specialized physicians, will need to be used to demonstrate these two essential pieces of evidence.
With regard to the fault, it will be a question of whether the physician has complied with all the obligations to which he is bound towards the patient. These various responsibilities are determined by several statutes, including the Code of Ethics of Physicians. Health professionals are, among other things, bound by an obligation to care and an obligation to follow. These two obligations represent obligations of means and not of result. They are therefore not obliged to guarantee healing, but they must still act with caution and reason in order to take the best means to achieve it. A fault will then be committed if there is a marked discrepancy between the conduct of a reasonable physician and the one being sued. A doctor will therefore not be held professionally liable if his error could also have been committed by one of his prudent and diligent colleagues.
Early leave and obligation to follow
Of course, the surgeon does not have to guarantee the success of the surgery. However, it must explain the risks to which the patient is exposed, the chances of success, other possible treatments, complications and side effects that could occur following the operation. The goal at this stage is to ensure that the patient is informed so that they are able to give informed consent. Thus, if a previously disclosed complication occurs, the patient will hardly be able to turn against the doctor since he was aware and had accepted the risk. It will then be necessary to demonstrate that the complication was caused by the negligence or carelessness of the surgeon.
Once the operation is complete, the doctor has the duty to adequately advise the patient on the measures to be taken to avoid and prevent the appearance of postoperative complications. It should also provide information about the warning symptoms of a side effect that may require further follow-up.
At this stage, it is essential that the patient cooperates and accurately follows the instructions given by the doctor, otherwise, he could be blamed for having contributed to his harm. Thus, a physician could be exempted if the infection contracted by the patient is due to his or her own negligence and failure to take the antibiotics prescribed.
When it comes time to sign the discharge from the hospital, the physician must ensure that the patient’s condition is stable and that the rest of the treatment can be safely administered at home. An early leave of absence from the hospital would then represent a breach of the obligation to follow and would be likely to engage the professional liability of the doctor or institution.
For example, in a case, a patient suffering from a hernia located in his spine decides to undergo a laminectomy, that is, the partial removal of a vertebra. Soon after, the patient has to undergo a second surgery due to some complications. It is after this second surgery that the doctor commits a fault by sending the patient home, only 3 days after the operation, and this, without having checked the condition of his spine. The patient suffered a vertebral crush which made him quadriplegic. The evidence showed that this could have been avoided if the physician had exercised due diligence and ensured the patient’s stability.
The physician must also remain available and be attentive to patients’ complaints. For example, the Superior Court convicted a physician who neglected the pain reported by a patient. The latter had him answer by his receptionist and advised him not to go to the emergency room. As her condition deteriorated, she had to undergo further surgery.
If you have had an experience similar to the examples mentioned, do not hesitate to contact our firm.