Medical Negligence in Surgery Guide

What is Medical Negligence in Surgery?

Medical negligence in surgery is a deviation from the accepted medical standard that has caused harm to a patient. When a surgeon or medical team fails to provide the required professional care, or acts with negligence, serious complications can arise. A surgical complication is not always medical negligence — natural complications can occur even with optimal care. However, when the complication is caused by negligence, a surgical error, or failure to follow established procedures, a claim for compensation can be brought.

In Israel, claims for surgical negligence are primarily governed by tort law — the Torts Ordinance and legal provisions established through case law over the years. Our firm, Mandelboim, Gor, Witzman-Gor and Partners, specializes in representing claimants exclusively in tort cases, and has accumulated extensive experience over more than 18 years in handling medical negligence claims of various types.

How is Negligence in Surgery Defined?

To prove negligence in surgery, three main requirements must be met:

• Existence of a legal duty: The surgeon must provide medical care in accordance with the professional standard accepted in Israel and worldwide.
• Breach of duty: The care provided fell below the accepted standard — whether due to a surgical error, insufficient pre-operative examination, or failure to follow safety procedures.
• Causation of harm: As a result of the breach of duty, harm was caused to the patient — whether physical, emotional, or financial.

Proof of all three requirements is essential for the success of the claim. Expert medical evidence is often required to prove that the care provided deviated from the accepted standard and that this deviation directly caused the harm.

Types of Surgical Negligence — Common Examples

Surgical negligence can manifest in various forms. Below are examples of situations where negligence may occur:

• Direct surgical error: Injury to nerves, blood vessels, or adjacent organs during surgery; leaving a foreign object inside the body (such as gauze, instruments, or needles); cutting or removing tissue that should not have been removed.
• Failure to perform required pre-operative tests: Failure to perform blood tests, imaging, or other tests that are standard before a particular surgery; failure to identify an existing medical condition that should have affected the decision to operate.
• Choice of inappropriate surgical method: Selection of a surgical approach that was not suitable for the circumstances of the case; failure to consider less invasive alternative treatment options.
• Failure to obtain informed consent: Performing surgery or expanding the procedure without the patient's informed consent; failure to inform the patient of significant risks.
• Inadequate post-operative care: Improper monitoring of the patient during the recovery period; failure to identify signs of complications; failure to timely address complications that were detected.
• Infection or failure to follow sterilization procedures: Failure to maintain sterile conditions in the operating room; failure to use sterile equipment or approved materials; contamination of the surgical wound.

Any of the above situations can be the basis for a claim of surgical negligence, provided it can be proven that the action (or inaction) deviated from the accepted standard and caused harm.

Surgical Complications versus Negligence — What's the Difference?

One of the main difficulties in surgical negligence claims is distinguishing between a natural complication and a complication resulting from negligence. Perioperative complications (such as infection, bleeding, or anesthesia reaction) can occur even with optimal care. However, when a complication is caused by lack of care or direct error, a claim may be brought.

This examination requires comparing the treatment provided against the standard of care accepted in the medical field. For example, a bleeding complication in a certain surgery may be expected and natural, but if the bleeding was caused by a non-sterile surgical instrument or by injury to a blood vessel that could have been avoided, it may be considered negligence. Each case is examined individually, based on the specific circumstances and expert opinions.

Proving Negligence — Expert Testimony

The opinion of a specialist physician is the cornerstone of any surgical negligence claim. The expert reviews all medical documents, the surgical report, test results, and recovery records. Subsequently, the expert assesses whether the treatment provided met the standard of care in the field.

Typically, the expert will provide a written statement regarding whether, in his opinion, there exists a deviation from the standard and whether this deviation caused damage. This statement serves as crucial evidence in the claim. If the expert finds a significant deviation, it substantially strengthens the patient's claim. Conversely, if the expert believes the treatment was standard, it becomes very difficult to succeed in the claim.

Choosing the right expert is critical. We work with physicians who have extensive experience in relevant fields and can provide professional and credible expert opinions in the eyes of the court.

Compensation Ranges in Surgical Negligence Claims

The amount of compensation in a surgical negligence claim depends on the severity of the damage caused. Generally, compensation includes the following items:

• Medical expenses: All expenses incurred as a result of the complication — additional surgeries, medications, hospitalization, physiotherapy, and other treatments.
• Lost income: Income lost due to inability to work during the recovery period or due to permanent disability.
• Pain and suffering: Compensation for the physical and emotional pain experienced by the patient as a result of the complication.
• Loss of earning capacity: In cases of permanent disability, compensation for loss of future earning capacity.
• Future medical expenses: An assessment of medical expenses that will be required in the future as a result of the damage.

Regarding compensation for pain and suffering, the court takes into account the duration and intensity of suffering, the impact on quality of life, and the psychological impact. In surgical negligence claims, compensation amounts can be substantial, especially when the damage is permanent.

Each case is unique, and the compensation range varies according to the circumstances. During our initial consultation, we assess the potential of the claim and the expected range of compensation.

Statute of Limitations — When Can a Claim Be Filed?

In Israel, the statute of limitations for a medical negligence claim is generally three years from the date on which the patient knew or should have known about the damage. Sometimes, this period can begin from the date of the surgery itself, or from the date on which the complication was discovered. In some cases, when the damage is not immediately apparent (such as in cases of nerve damage or reduced work capacity discovered gradually), the period may begin later.

It is important to note that not every claim regarding a surgical complication will be filed within the time limit. If the statute of limitations has expired, a claim generally cannot be filed. Therefore, it is very important to consult with an attorney as soon as possible if you suspect that there was negligence in a surgery you underwent.