Surgical errors aren't all alike, and the type of error shapes how your case gets built. Understanding the different categories helps you see where your experience fits and what proving negligence will require.
Never Events: The Clearest Cases
Some surgical errors are so fundamental, so obviously wrong, that their mere occurrence establishes negligence. These "never events" include operating on the wrong side of the body—the left kidney instead of the right, the healthy breast instead of the cancerous one—performing surgery on the wrong patient entirely, and leaving sponges, instruments, or other foreign objects inside patients after closing.
These cases don't require expert testimony to explain that something went wrong. The error speaks for itself. Operating on the wrong body part isn't a judgment call or a risk inherent to surgery; it's a failure of the most basic verification procedures. The focus in these cases shifts from proving liability (which is essentially automatic) to establishing damages—how seriously the error harmed you and what compensation is appropriate.
Technique Errors: Where Expertise Matters
Most surgical malpractice involves mistakes in how the surgery was performed. The surgeon accidentally cuts a blood vessel that should have been identified and avoided. A nerve that runs through the surgical field gets damaged when it should have been protected. Sutures fail because they were placed incorrectly. An adjacent organ gets injured when the scope of surgery should have been limited to the target area.
These cases require expert witnesses because surgery inherently involves judgment and risk. Vessels do sometimes get nicked. Nerves can be stretched or damaged even with good technique. Complications happen even when surgeons do everything right. The question is whether what happened to you was an acceptable complication of a properly performed surgery or the result of technique that fell below professional standards.
A qualified surgical expert—usually a surgeon in the same specialty as the defendant—reviews your operative reports and medical records, compares what happened to what standard technique requires, and explains to the jury why this particular outcome reflects negligence rather than acceptable risk. Without that expert testimony, technique-based claims generally can't proceed.
Judgment Errors: The Decision to Operate
Sometimes the error isn't how surgery was performed but whether it should have been performed at all. Surgeons have recommended procedures that weren't medically indicated—removing organs that didn't need to come out, operating on imaging findings that called for watchful waiting rather than intervention. They've chosen inappropriate surgical approaches when safer alternatives existed. They've proceeded with surgery despite patient conditions that made the risks unreasonably high.
These cases require experts to establish what a reasonably competent surgeon would have recommended under the same circumstances. The standard isn't perfection—surgeons don't have to make the optimal choice every time—but they do have to make choices that fall within the range of reasonable professional judgment. Recommending surgery primarily for financial reasons, or operating when the patient clearly wasn't a suitable candidate, crosses that line.
Post-Operative Failures
Malpractice can occur after the surgery itself ends. Complications that develop in the hours and days following surgery need to be recognized and addressed. Internal bleeding, surgical site infections, anastomotic leaks, blood clots—these are known risks of surgery, and monitoring for them is part of the standard of care. When providers fail to catch developing complications, when patients get discharged prematurely and return in crisis, when warning signs documented in nursing notes don't trigger appropriate response, that's negligence in post-operative care.
Building Your Case
Regardless of which category your case falls into, you'll need complete medical records including operative reports, anesthesia records, nursing notes, and post-operative documentation. You'll need expert review by a qualified surgeon who can evaluate whether the care met standards and, if not, explain the deviations to a jury. You'll need evidence connecting the error to your injury, because even clear negligence doesn't make a case if your outcome would have been the same regardless. And you'll need documentation of your damages—the medical bills, the lost income, the pain and suffering, the lasting impact on your life.
What Recovery Looks Like
Surgical malpractice damages typically include additional medical expenses from the corrective treatment you shouldn't have needed, lost income during extended recovery, compensation for pain and suffering, and money for any lasting impairment or limitation. Some states cap certain categories of malpractice damages, particularly non-economic damages like pain and suffering, which can affect the total recovery available. Your attorney should explain how your state's laws apply to your specific situation.