Undergoing surgery can be stressful, even when everything goes according to plan. Unfortunately, when surgical procedures result in complications due to negligence or substandard medical care, patients may wonder whether they have grounds to sue. In California, patients who suffer harm from a botched surgery may be able to pursue a medical malpractice lawsuit to recover compensation for their injuries and losses.
This article explains when you can sue for a surgery gone wrong, what qualifies as medical malpractice, and how damages are calculated under California law.
What is Surgical Malpractice?
Surgical malpractice occurs when a surgeon, anesthesiologist, or surgical team member fails to meet the accepted standard of care, resulting in avoidable injury to the patient. While not every surgical complication constitutes malpractice, you may have a valid case if your injury resulted from:
- Negligence (e.g., operating on the wrong body part)
- Lack of informed consent
- Incompetence or failure to follow protocol
- Poor post-surgical care
Common Examples of Surgery Gone Wrong Cases
1. Wrong-site surgery
Operating on the wrong limb, organ, or side of the body is a serious surgical error and a clear example of negligence.
2. Foreign objects left inside the body
Leaving sponges, surgical tools, or other items inside the patient is a common cause of surgical malpractice lawsuits.
3. Nerve or organ damage
Unnecessary or preventable injury to nearby nerves, blood vessels, or organs may constitute malpractice.
4. Infections caused by poor sterilization
If surgical site infections are linked to unsanitary equipment or conditions, hospitals or surgeons may be held liable.
5. Anesthesia errors
Administering too much or too little anesthesia, or failing to monitor vital signs, can result in brain damage or death.
How Do You Prove Medical Malpractice After Surgery?
To successfully sue for surgical malpractice in California, you must prove four key elements:
- Duty of care – The surgeon or hospital owed you a professional duty to follow accepted medical standards.
- Breach of duty – The surgeon or staff failed to meet that standard (e.g., made a preventable error).
- Causation – The breach directly caused your injury or worsened your condition.
- Damages – You suffered harm, such as physical injury, additional surgeries, lost income, or emotional distress.
Expert testimony from another qualified medical professional is typically required to prove that the standard of care was breached (California Code of Civil Procedure § 364).
What Damages Can You Recover for a Botched Surgery?
Patients harmed by surgical errors may be entitled to compensation for:
- Medical expenses – Costs related to corrective procedures, hospital stays, rehabilitation, and medication.
- Lost income – Wages lost due to time off work or reduced earning capacity.
- Pain and suffering – Physical and emotional pain caused by the injury.
- Loss of enjoyment of life – Compensation for diminished quality of life due to permanent disabilities.
MICRA Cap on Non-Economic Damages:
For medical malpractice cases in California, non-economic damages (e.g., pain and suffering) were previously capped at $250,000 under the Medical Injury Compensation Reform Act (MICRA), but starting in 2023, this cap has been raised to $500,000, with scheduled annual increases (Judicial Council of California, 2023).
What is the Statute of Limitations?
In California, you generally have:
- 1 year from the date of discovery of the injury or
- 3 years from the date of the surgery, whichever occurs first (California Code of Civil Procedure § 340.5).
Certain exceptions apply for minors or in cases involving fraud or concealment.
Can You Sue a Hospital or Surgical Center?
Yes. In addition to suing the surgeon, patients may pursue claims against the hospital, surgical center, or other healthcare providers involved in the procedure if they contributed to the negligence (e.g., improper staffing, unsanitary conditions, inadequate post-op monitoring).
When is a Complication NOT Malpractice?
Not every adverse outcome qualifies as malpractice. Some surgeries carry inherent risks, and if a complication was known and properly disclosed during the informed consent process, it may not be grounds for a lawsuit—unless negligence can still be proven.
Conclusion
If you’ve suffered serious harm from a surgery gone wrong, you may have the right to file a medical malpractice lawsuit in California. Proving negligence requires expert medical testimony and a detailed investigation, so working with an experienced medical malpractice attorney is critical to pursuing compensation.
References
- California Code of Civil Procedure § 340.5. (2023). Statute of limitations for medical malpractice. https://leginfo.legislature.ca.gov
- California Code of Civil Procedure § 364. (2023). Medical malpractice expert witness requirement. https://leginfo.legislature.ca.gov
- Judicial Council of California. (2023). Updates to MICRA non-economic damage cap. https://www.courts.ca.gov
- National Institutes of Health. (2022). Preventing surgical errors and improving outcomes. https://www.nih.gov
