Res Ipsa Loquitor

“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, and thus, your wife would have no case.

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 loquitor. Basically res ipsa loquitor holds people accountable for actions that do not ordinarily occur in the absence of negligence; for actions that are in the total control of the surgeon and hospital; and for actions not due to any conduct of the injured party. Obviously, your wife was under anesthesia so she had nothing to do with anything involving the surgery. The surgeon and hospital were in complete control during the operation. Finally, leaving surgical tools, like a sponge, inside a patient would be considered negligent.

If the doctor leaves a surgical sponge inside the patient, a jury can infer negligence against the doctor and hospital without expert testimony and award damages to the plaintiff in a court case. But each case can be different and more details of the surgery would be necessary to give a better answer.

Medical Malpractice Claims v Personal Injury

What is the difference between a medical malpractice law suit and a personal injury law suit?

A medical malpractice case is a law suit against a doctor (or other health care provider) because the medical treatment rendered to a particular patient deviated from acceptable standards of care for doctors (or other health care provider) in the area.

A personal injury suit is ANY lawsuit (medical practice, car accident, trip and fall accident, etc.) in which the injured party (the plaintiff) seeks damages (monetary award) for “personal injury,” also known as a claim for pain and suffering. Personal injuries are only one element of damages sought. There can also be other types of damages in law suits brought by injured people, such as claims for medical bills, lost wages, and out-of-pocket expenses.

So all medical malpractice claims seek damages for personal injuries along with claims for medical bills, lost wages and out of pocket expenses. But not all personal injury suits (suits for car accidents, trip and fall accidents, and medical malpractice) are medical malpractice suits.