My wife had a minor surgery several weeks ago, but she developed an infection that nearly cost her life. Can I sue the hospital for malpractice?
If your wife’s infection occurred during her surgery and there were no surgical mistakes that increased the risk of infection, then generally, the answer is no, your wife cannot sue. Infection following a surgery is considered a foreseeable risk of most procedures. No matter what the surgeon may have told before the surgery, there is always risk associated with surgery.
However, if the surgeon left something in your wife to cause her infection, like a surgical sponge, then the hospital and doctor would be liable under a legal theory named res ipsa loquitur. Kambat v St. Francis Hosp., 89 NY2d 489, 655 NYS2d 844 (1997).
Basically res ipsa loquitur holds people accountable for (1) actions that do not ordinarily occur in the absence of negligence (2) actions that are in the total control of the surgeon and hospital, and (3) for actions not due to any conduct of the injured party. James v Wormuth, 21 NY8d 540, 974 NYS2d 308 (2013).
Obviously your wife had nothing to do with anything involving the surgery. The surgeon and hospital were in complete control during the operation. Finally, it is negligent to leave surgical tools, like a sponge, inside a patient.
A jury can infer negligence against the doctor and hospital without expert testimony. The Court would award damages to your wife. But each case can be different and more details of the surgery would be necessary to give a better answer.
By James Santner, Esq.
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