Medical Malpractice in Surgery: Guide to Rights, Proving Damage, and Stages of Filing a Compensation Claim

Medical Malpractice|May 30, 2026

LawReviews

Medical malpractice in surgery is defined as a deviation by the medical staff from the accepted standard of care during the preoperative stage, during the surgery itself, or during the post-procedural recovery phases.

To establish a legal cause of action, three cumulative conditions must be proven:

Damage: Actual physical or psychological injury caused to the patient.
Negligence: A deviation from reasonable and accepted medical practice.
Causal Link: Direct proof that the damage was caused as a result of the medical negligence.

Table of Contents:

Common Types of Medical Malpractice in Surgeries
Medical Malpractice Before Surgery
Medical Malpractice During Surgery
Negligence in Post-Operative Follow-Up
Compensation in a Surgical Medical Malpractice Lawsuit
Statute of Limitations in a Surgical Medical Malpractice Lawsuit
What to Do if Surgical Medical Malpractice is Suspected?

Common Types of Medical Malpractice in Surgeries

1. Preoperative preparation stage (before the procedure):
- Lack of informed consent: Failure to detail the risks and prospects of the surgery to the patient, and failure to outline treatment alternatives.
- Medical malpractice in diagnosis and testing: Failure to perform vital preliminary tests or choosing the wrong surgical procedure without medical justification.
1. During the surgery itself:
- Technical surgical errors: Incorrect incision or injury to adjacent vital organs.
- Equipment and safety failure: Using defective equipment or leaving foreign objects (such as pads or instruments) in the patient's abdomen.
1. Follow-up and recovery stage (after the procedure):
- Defective supervision: Failure to recognize complications on time, such as internal bleeding, infections, or blood clots.
- Premature discharge: Discharging the patient home before their medical condition has stabilized.

Medical Malpractice Before Surgery

Did the doctor check all medical data before deciding on surgery?

A doctor must act reasonably and in accordance with accepted standards. A doctor who does not check all medical data before deciding on surgery is negligent in their duty.

Can ignoring background diseases or risk factors be considered negligence?

Section 35 of the Torts Ordinance establishes the foundation for a medical malpractice lawsuit, stating: "If a person does an act which a reasonable and prudent person would not do under the same circumstances... or in a certain occupation did not use the skill or exercise the care... it is negligence." Accordingly, a medical staff that ignores risk factors or underlying conditions fails to exercise the required care, raising a suspicion of negligence.

Informed Consent Before Surgery

What is informed consent before surgery?

The Patient Rights Law stipulates that medical treatment shall not be given to a patient unless the patient has given informed consent to it. To obtain informed consent, the doctor is required to deliver the medical information necessary to allow the patient to decide whether they agree to the treatment.

What risks must the doctor explain to the patient before surgery?

The doctor must explain the diagnosis and prognosis of the patient's medical condition, describe the procedure, its expected benefit, and the chances of success. On the flip side, they must inform the patient about the risks involved in the surgery, such as side effects, pain, and discomfort, as well as the risks and prospects of alternative medical treatments or the absence of medical treatment.

Choosing the Type of Surgery and Treatment Alternatives

Is the doctor required to present alternatives to surgery to the patient?

As part of obtaining informed consent, the doctor must present surgery alternatives, the risks and prospects of those alternative treatments, or the absence of medical treatment. If they failed to do so, there may be a cause of action to sue for negligence.

Can choosing an unsuitable surgical method be considered negligence?

As long as the doctor or medical staff provides full information, including treatment alternatives, prospects, risks, and so forth, they allow the patient to formulate their decision and give informed consent to the treatment. However, selecting a surgical method that is unsuited to the medical condition, which deviates from accepted practice, constitutes professional negligence.

Medical Malpractice During Surgery

What errors during surgery can be considered medical malpractice?

Surgical medical malpractice can be claimed when the surgeon or medical staff acted contrary to the accepted standard and in an unreasonable manner. Surgical errors can occur before, during, and after the operation: incorrect diagnosis, damage to adjacent organs, leaving foreign objects in the patient's body, operating on the wrong organ, failure of informed consent, and more.

Is injuring an adjacent organ during surgery always negligence?

Injuring an adjacent organ during surgery is not always negligence. Surgeries involve inherent risks; therefore, the question of whether the injury will be considered medical malpractice depends on the conduct of the medical staff and whether it deviated from a reasonable medical standard.

How do you prove what really happened in the operating room?

The Patient Rights Law requires the medical institution and the treating physician to document the course of medical treatment in a medical record. A patient is entitled to receive the collected medical information, including info about the surgery, its execution, tests performed before and after, etc. This information is crucial to understand and prove what really transpired in the operating room.

Error in Identification, Location, or Execution of the Surgical Procedure

What happens if the wrong organ or the wrong side is operated on?

Unlike complex cases where negligence is difficult to prove, operating on the wrong organ is an extreme case and represents clear medical malpractice. It is very easy to prove a deviation from a reasonable medical standard in this scenario, so the court is expected to rule that it constitutes negligence.

What documents can prove an error during surgery?

The patient's medical record can prove an error during the operation. For example, the operative report written during the procedure, the time-out form (a safety protocol executed in the operating room before the first incision), the informed consent form, the hospitalization summary, and more.

Medical Malpractice in Anesthesia

Can damage from anesthesia be considered medical malpractice?

Damage from anesthesia can be considered medical malpractice if the anesthesiologist deviated from the accepted standard.

What is checked before general or regional anesthesia?

Before performing general or regional anesthesia, a pre-anesthetic evaluation must be conducted by an anesthesiologist. This is an assessment intended to determine the type and blend of anesthetic agents.

What damages can be caused due to negligence in anesthesia?

Negligence in anesthesia can lead to minor and transient damages, severe permanent damages, or even death. Among others: brain damage, cardiac arrest and stroke, brain death, paralysis, nerve damage, and damage to teeth, throat, and jaw.

Negligence in Post-Operative Follow-Up

What does the duty of medical follow-up after surgery include?

The duty of medical follow-up after surgery is an integral part of the treatment and rests on the medical staff. The follow-up is carried out in three primary time stages – during the first hours following surgery, during the hospitalization itself, and at the stage of discharge and follow-up. Ignoring the patient's complaints or suspicious signs can establish ground for a medical malpractice lawsuit.

Can a premature discharge from the hospital be considered negligence?

A premature discharge from the hospital can be considered negligence. The courts have ruled on multiple occasions that a premature and hasty discharge, without performing tests and without continued monitoring, can constitute negligence. It has been ruled that a shortage of hospital beds or overcrowding does not justify a alteration in the required medical standard.

Can a failure to recognize a post-operative complication establish a cause of action?

The follow-up carried out by the medical staff after surgery is intended to prevent complications and address suspicious signs in the patient. Failing to perform such monitoring can constitute medical malpractice; however, each case is judged on its own merits, and it must be examined whether the staff acted reasonably.

Post-Operative Infections and Complications

Is a post-operative infection always medical malpractice?

An infection is one of the common complications after surgery; therefore, not every case of infection will constitute medical malpractice. For an infection to be proven as medical malpractice, a deviation from the reasonable standard of care must be proven.

When might a surgical infection indicate negligent care?

A surgical infection may indicate negligent care when the medical staff did not act with the reasonable expectation expected of them. For instance, it will be examined whether the medical staff failed to act according to the accepted hygiene protocol (maintaining sterility, administering antibiotics) or if they ignored warning signs indicating an infection or delayed the diagnosis of the infection.

Bleeding, Blood Clot, or Deterioration After Surgery

Can post-operative bleeding indicate negligence?

Bleeding is considered a possible and even common complication after surgery, so not all bleeding indicates medical malpractice. However, there are cases where the bleeding stems from medical negligence. For example, in cases of injury to a major blood vessel, unthorough wound closure, ignoring internal bleeding signs, dismissing the patient's complaints, failing to stop blood thinners, and more.

What happens if signs of deterioration were not recognized in time?

Part of the post-operative medical protocol is designed to detect warning signs like bleeding or infection. If the medical staff failed to perform the tests properly (or did not perform all tests) or if they dismissed the patient's complaints that could indicate a suspicion of internal bleeding – this might constitute medical malpractice.

How do you check if the treatment of a post-operative complication was reasonable?

To check if the treatment of a post-operative complication was reasonable, we examine whether the medical staff acted according to accepted medical practice. The examination is conducted based on the reasonable doctor test and includes the speed of diagnosis, what tests were performed, and whether the correct response was given.

Repeat Surgery or Revision of Previous Surgery

Does the need for a repeat surgery necessarily indicate medical malpractice?

Not necessarily. The need for a repeat surgery indicates medical malpractice when the operation is required to correct an anomalous error, such as leaving a foreign body or reopening a suture that was closed incorrectly. In other cases, it will indicate negligence when the surgery is required due to a delayed diagnosis of the complication.

What is checked when a revision surgery is required?

When a repeat surgery is required, it must be checked what failure made it necessary, and whether it was required as a result of negligence in the first surgery.

Nerve Damage, Organ Injury, or Disability After Surgery

Can nerve damage after surgery be considered medical malpractice?

Nerve damage after surgery can be considered medical malpractice, depending on the conduct of the medical staff and whether they acted according to reasonable standards.

How do you prove that the damage was caused by the surgery and not a prior medical condition?

This is one of the central stages in building a malpractice claim. To prove medical malpractice in court, one must show the negligent event (the surgery), the damage caused, and the causal link between the two. This link will rely on medical documents and hospital documentation through a professional expert opinion in the field.

What medical expert is required to examine damage after surgery?

To assess the damage, this will usually rely on two types of medical experts: an expert regarding the quality of the surgery and the surgeons' conduct, and an expert who will render an opinion on the specific damage caused to the patient.

Medical Malpractice in Aesthetic Surgeries

Is the duty of explanation to the patient broader in aesthetic surgeries?

In judgment Civil Appeal (CA) 6153/97 (Stendel v. Prof. Sadeh), the court established the principles of "heightened disclosure duty" in plastic surgeries. Because it is elective surgery, which is not designed to save a life or resolve an urgent medical problem, the court ruled that the patient must be provided with a significantly broad explanation.

What is the difference between dissatisfaction with a result and medical malpractice?

A patient's dissatisfaction does not mean that the doctor was negligent within the execution of the aesthetic procedure. An expert physician who will formulate an expert opinion will help determine if the dissatisfaction is indeed the result of negligence (even negligence in providing pre-treatment explanations).

Can scars, deformity, or asymmetry be considered malpractice?

Yes, courts have ruled on multiple occasions that prominent deformities, functional deformities, anomalous scars, or prominent asymmetry can be considered medical malpractice both in terms of the disclosure duty (informed consent) and in terms of the reasonable conduct of the treating staff.

Medical Malpractice in Urgent vs. Planned Surgeries

Is the medical standard different in an urgent surgery?

In both a planned surgery and an urgent surgery, the medical staff must meet accepted standards. However, the way the court defines the "reasonable doctor" in urgent surgeries is different, and it grants greater flexibility to the medical staff.

How is negligence assessed when the surgery was performed under time pressure?

An error in judgment when it comes to an emergency surgery performed under time pressure is not identical to an error in judgment in a planned surgery, and it does not automatically mean that it constitutes negligence. In these cases, if the doctor made an error in judgment, the court might rule that it represents a reasonable risk due to the circumstances.

Is there a duty to document medical decisions even in an urgent surgery?

Section 17 of the Patient Rights Law requires the medical staff to document medical decisions in any situation, including those made in emergency situations and urgent surgeries.

Medical Malpractice in Private vs. Public Hospital Surgery

Is there a legal difference between private and public surgery?

In both private and public surgery, the medical staff is obligated to meet accepted standards according to the reasonable doctor doctrine. However, there is a difference between the two. In public surgery cases, the relationship between the parties is based on public law and the National Health Insurance Law. In private surgery, there is a direct contract between the patient, the doctor, and the medical center, so the lawsuit is based not only on a negligence (tort) cause of action but also on a breach of contract cause of action.

Against whom is a lawsuit filed in a private surgery case?

In a private surgery case, the lawsuit will be filed against the defendant personally (via their insurance company) and against the medical center (if institutional negligence exists).

Can you sue both the doctor and the medical institution?

In public surgery, the lawsuit is mostly filed against the state (if it is a government hospital) or against a health fund (Kupat Holim, if it is a hospital or medical institution of the fund). Here, the medical institution bears full vicarious liability for any error by staff members. In private surgery, the lawsuit is filed against the treating physician and, in certain cases, against the medical center as well.

Responsibility of the Medical Staff in the Operating Room

Is only the surgeon responsible for what happens during surgery?

No. The law stipulates that not only the surgeon is responsible for what happens during surgery, but also the rest of the medical staff and the medical institution itself (in the case of a public hospital surgery) which bears full vicarious liability.

What is the responsibility of the anesthesiologist, nurses, and operating room staff?
- The anesthesiologist is responsible for the systemic aspects of the patient's body unrelated to the surgical incision. The nurses are responsible for counting equipment to prevent leaving a foreign object, maintaining sterility, and verifying the patient's identity.
How do you check the responsibility of multiple medical entities in the same surgery?

The lawyer and medical experts examine and deconstruct the stages of the surgery, attempting to evaluate who was responsible for the failure. The goal is to perform an internal division of liability based on the relative moral fault test.

Medical Documentation and Operative Report

What is an operative report and why is it important in a medical malpractice claim?

The law requires the medical staff to document the course of treatment in a medical record. The operative report is the medical record updated throughout the surgery and thereafter. If there was medical malpractice in the surgery, the report will serve as central evidence in the lawsuit.

What documents is it important to collect after a surgery that went wrong?

After a surgery that went wrong, it is important to contact the medical institution and request the medical records, the operative report, the hospitalization summary, and any medical document that exists regarding the patient.

What do you do if the medical documentation is missing or unclear?

The law obligates the medical institution to maintain a record and documentation of the medical treatment. If the material is missing or unclear, this can aid the claim of the injured patient. In certain cases, the court can even shift the burden of proof to the defendant, so that the doctor and medical institution will have to prove they acted with care and reasonableness.

Medical Opinion in a Surgical Medical Malpractice Claim

Why is an expert opinion needed in a surgical medical malpractice lawsuit?

The Civil Procedure Regulations require submitting a medical expert's opinion in a medical malpractice lawsuit, and this is a threshold condition. The court does not possess medical or surgical knowledge and requires the opinion of an expert physician to determine whether negligence indeed occurred.

What expert needs to examine the case?

In a case of surgical medical malpractice, an expert physician's opinion is needed, and sometimes from two expert physicians when the damages cross into different fields: a senior surgeon and an expert physician for the field where the damage occurred.

Can a lawsuit be filed without a medical opinion?

A medical malpractice lawsuit cannot be filed without a medical opinion; it is a threshold condition.

Causal Link Between the Surgery and the Damage

What is a causal link in a surgical medical malpractice lawsuit?

To prove a medical malpractice lawsuit, a causal link must be proven between the negligent event and the damage caused to the patient. It must be proven that the damage caused to the patient would not have materialized but for the negligence of the medical entity.

How do you prove that the damage was caused by the surgery and not by the original illness?

To prove that the damage was caused as a result of the surgery and not due to the original illness, the lawyer and medical expert must make a sharp distinction between the symptoms of the illness and the outcomes of the surgery.

Why is the causal link one of the central challenges in surgery lawsuits?

The causal link is one of the central challenges in surgery lawsuits because it constitutes the main dispute between the injured party and the medical staff. Even if it is easy to prove that damage was caused to the patient, clear proof that the surgery is the cause of the damage is complex. In surgery cases, there are always complications and risks, so the treating staff will seek to argue that the damage is part of those inherent risks.

Compensation in a Surgical Medical Malpractice Claim

What types of compensation can be claimed after medical malpractice in surgery?

There are two types of compensation in the tort world (composed of different heads of damage). The first type is pecuniary damage, which includes compensation intended to cover financial losses caused to the patient following the negligent surgery and expected to be caused to them in the future (loss of wages, medical expenses, third-party assistance, etc.). The second type is non-pecuniary damage, compensation determined at the judge's discretion intended to compensate for emotional harm. This type includes compensation for pain and suffering, loss of autonomy, and shortened life expectancy.

Can compensation be received for pain and suffering, loss of wages, and loss of earning capacity?

Compensation can indeed be received for these heads of damage. Compensation for pain and suffering falls under non-pecuniary damage and is subject to the judge's discretion.

What affects the amount of compensation in a surgical medical malpractice lawsuit?

The amount of compensation is not fixed and varies from case to case according to the plaintiff's personal details. Central factors that affect the sum's amount are: the patient's age, the wage level before surgery, the medical disability percentage, the need for third-party assistance and special expenses, and the intensity of the blow to autonomy and pain and suffering.

Medical Failure in the Delivery Room: The Court Awarded Compensation of 10.5 Million NIS

A dramatic judgment reveals how one reckless decision by the medical staff overturned a family's world. At the center of the case, a parturient woman in her 31st week of pregnancy who was rushed to an urgent cesarean section – a decision that turned out in retrospect to be completely wrong and without real medical justification.

The hasty medical procedure led to the birth of a premature infant, who suffered from severe brain bleeding that left him with cerebral palsy and complex disabilities (both physical and mental). The District Court accepted the claims in full, ruled that it constituted clear medical terminology malpractice, and obligated the medical institution to a huge compensation of about 10.5 million shekels following medical malpractice in a cesarean section.

Statute of Limitations in a Surgical Medical Malpractice Claim

Within how much time can a surgical medical malpractice lawsuit be filed?

The law stipulates that a medical malpractice lawsuit shall be filed within 7 years from the day of the negligent event, meaning from the day of surgery. However, in cases where the damage became apparent at a later stage (for example, a foreign object left in the body and discovered only later), the counting of the medical malpractice statute of limitations will be from the day the damage was discovered, provided that 10 years have not passed from the day of surgery.

What happens if the damage from surgery was discovered only after years?

If the damage from surgery was discovered only after years, the statute of limitations count will begin from the date of discovery, provided that 10 years have not yet passed from the date of surgery.

What to Do if Surgical Medical Malpractice is Suspected?

What is the first step after a suspicion of medical malpractice in surgery?

When a person suspects medical malpractice in a surgery they underwent, they should contact a lawyer specializing in medical malpractice as soon as possible. A medical malpractice lawyer knows how to evaluate whether it indeed constitutes medical malpractice, will present the options available to the patient, and direct them on how to proceed legally.

What documents should be collected before contacting a lawyer?

Before contacting a lawyer, it is recommended to collect all documents in the patient's possession – referrals, visit summaries, drug prescriptions, hospitalization summaries, and the like. After the meeting with the lawyer, the patient will receive instructions on how to act to obtain their full medical file.

Should you contact the hospital or a lawyer first?

Before any communication with the hospital or any of the medical staff, it is highly recommended to consult with a lawyer, this is to prevent a situation where details in the medical file and the operative report are altered.