Medical Malpractice in Surgery - Recommended Lawyers in the Field

Surgery (surgical procedure) constitutes one of the most powerful and advanced tools in modern medicine. For millions of people in Israel and around the world, the operating room is the place where they hang hopes for healing, pain relief, and improvement in quality of life. We entrust our bodies and our health to the trusted hands of surgical teams, anesthesiologists, and nurses, with complete faith and confidence in their professionalism and dedication. In the vast majority of cases, this trust is indeed justified, and surgeries end successfully.

But what happens when something goes wrong?

What happens when the hoped-for outcome is replaced by unexpected damage, persistent pain, or disability? It's important to distinguish between a known and reasonable medical complication, which may occur even under the best treatment, and medical malpractice in surgery. Malpractice occurs when damage is caused due to human error, deviation from the accepted standard of care, lack of skill, or wrong decision-making by the medical team.

The consequences of a surgical error can be devastating – physically, mentally, and financially. The patient and their family find themselves dealing with a new and painful reality, requiring additional treatments, long rehabilitation, and sometimes coping with permanent limitation.

In these difficult situations, it's important to know that Israeli law recognizes the right of the injured party to receive appropriate compensation. The path to realizing this right goes through deep understanding of the field and contacting an experienced medical malpractice attorney, who can navigate you through the complex legal and medical maze.

This comprehensive page, presented to you by the LawReviews website, is designed to provide you with all the essential information on the subject, according to Israeli law and case law. Additionally, on the page you will find law firms specializing in medical malpractice. So if you or your loved one was injured by medical malpractice, you can find a skilled attorney for comprehensive legal consultation.

Part 1: What is Medical Malpractice in Surgery According to Israeli Law?

The legal definition of malpractice does not focus on the final outcome of the surgery, but on the conduct of the medical team. The legal basis for every medical malpractice lawsuit, including in the field of surgery, is anchored in the Torts Ordinance [New Version]. To prove the existence of the tort of negligence, the plaintiff (the injured party) must prove four cumulative elements:

1. Existence of a duty of care: Every surgeon, anesthesiologist, and every medical staff member in the operating room has a duty of care toward the patient. This is a clear and absolute duty arising from the very nature of doctor-patient relations.
2. Breach of duty of care (negligence): This is the heart of the lawsuit. Here it must be proven that the medical team deviated from the accepted standard of care. The court examines this through the "reasonable surgeon test" – would a reasonable surgeon, with the same level of expertise and experience, have acted differently under exactly the same circumstances? This deviation can manifest in wrong surgical technique, damage to an adjacent organ, leaving a foreign body, and more.
3. Existence of damage: It must be proven that the patient suffered damage – physical, mental, or financial – as a result of the surgery.
4. Causal relationship: A direct cause-and-effect relationship must be proven between the negligence (breach of duty of care) and the damage caused. That is, the damage is a direct result of the defective medical treatment, and without the negligence, the damage would have been prevented or significantly reduced.

Informed Consent: A Critical Element in Surgical Medicine

An additional and important component in surgical medical malpractice lawsuits is the issue of "informed consent." According to the Patient Rights Law, 5756-1996, surgery cannot be performed (except in certain emergency cases) without obtaining the patient's explicit and informed consent. For consent to be "informed," the surgeon must provide the patient with a detailed explanation, in language understandable to them, about:

• The medical diagnosis and need for surgery.
• The nature of the surgical procedure, its purpose, and how it will be performed.
• The common and rare risks and complications associated with the surgery.
• The success chances of the surgery.
• Possible treatment alternatives, including conservative (non-surgical) treatment, and the risks and chances in each alternative.

When the information provided to the patient was partial, misleading, or not provided at all, and the patient suffered from a complication about which they were not warned, they may have grounds for a lawsuit for "violation of autonomy" and negligence due to lack of informed consent, even if the surgery itself was performed skillfully.

Part 2: Common Scenarios of Medical Malpractice in the Surgical World

Surgical malpractice can occur at any stage of treatment: before surgery, during it, or in the recovery period afterward.

A. Pre-surgical Stage Negligence (Surgery Preparation)

• Wrong diagnosis: The classic case is performing unnecessary or wrong surgery due to poor diagnosis. For example, removing a healthy organ or surgery to treat a non-existent disease.
• Failure to perform preliminary tests: Failure to refer for blood tests, imaging (CT, MRI), or essential consultations (such as cardiological consultation before heart surgery), designed to assess the patient's condition and surgical risks.
• Poor surgical planning: Choosing a surgical technique that is not suitable for the patient's specific condition.

B. Negligence During Surgery (in the Operating Room)

This is the most familiar category, including critical errors:

• Wrong-site surgery: The shocking case of surgery on the wrong organ, on the wrong side of the body (for example, surgery on the left leg instead of the right), or on the wrong patient.
• Damage to adjacent organs: During surgery, the surgeon may damage organs, nerves, blood vessels, or tissues adjacent to the surgical area due to lack of caution or skill. For example, damage to the bile duct during gallbladder removal surgery, or nerve damage during back surgery.
• Leaving a foreign body: One of the most explicit cases of negligence. Leaving a gauze pad, sponge, or even a small surgical instrument inside the patient's body. These cases cause severe infections, severe pain, and require repeat surgery to remove the foreign body.
• Anesthesia negligence: Negligent management of anesthesia by the anesthesiologist, such as giving a wrong dose of anesthetic agents, negligent intubation (insertion of breathing tube), or poor monitoring of the patient's vital signs during surgery.
• Hospital-acquired infections (nosocomial infection): Contracting a resistant bacterial infection due to failure to maintain proper sterilization conditions in the operating room or using equipment that is not sterile as required.

C. Post-surgical Stage Negligence (Follow-up and Recovery)

Treatment does not end with the last suture. Careful and alert follow-up after surgery is critical for detecting complications:

• Negligent follow-up: Failure to timely identify signs indicating a known complication, such as internal bleeding, infection in the surgical wound, development of blood clot (DVT), or pulmonary embolism.
• Early or negligent discharge: Discharging the patient home when their condition is not stable, or without providing clear and detailed instructions for continued treatment, follow-up, and identification of warning signs.
• Poor treatment of complications: When a complication already develops, late or wrong treatment can significantly worsen the damage.

Examples of Medical Malpractice in Specific Types of Surgery

While the principles of medical malpractice apply to every surgical field, each type of surgery has unique risks and emphases. Deviation from the accepted standard of care in any of the following areas can lead to severe and irreversible damage:

Medical Malpractice in Heart Surgery

Heart surgeries, such as bypass surgery or valve replacement, are life-saving but complex procedures with high risk. Medical malpractice in this field can manifest in negligent performance of bypass implantation, leading to recurrent heart attack or heart failure; damage to heart muscle tissue or the electrical conduction system; causing air or blood clot embolism leading to stroke; or failed management of the heart-lung machine. Even in the recovery stage, failure to identify signs of mediastinum infection (chest cavity) can constitute serious negligence.

Medical Malpractice in Back and Spine Surgery

The critical proximity of the spinal cord and nerves makes back surgeries, such as disc surgeries or vertebra fusion, particularly sensitive. Common negligence in the field includes surgery in the wrong location (at the wrong vertebra level); direct damage to the spinal cord or nerve root, which can cause paralysis, limb weakness, or damage to sphincter control ("cauda equina syndrome"); poor fixation of implants or screws causing chronic pain and instability; or failure to perform adequate decompression (pressure relief) from the nerve.

Medical Malpractice in Head Surgery (Neurosurgery)

The brain is the most sensitive and complex organ, and any error in neurosurgical surgery can be catastrophic. Negligence in surgery to remove a brain tumor, for example, can be partial removal of a tumor that could have been completely removed, or conversely, extensive damage to healthy brain tissue around the tumor. Additional errors include damage to major blood vessels causing bleeding or stroke, damage to cranial nerves responsible for vision, hearing, or facial movements, and improper monitoring of intracranial pressure after surgery.

Medical Malpractice in Plastic and Aesthetic Surgery

Although these surgeries are usually not life-saving, the standard of care expected from the surgeon is extremely high, especially regarding expectation coordination and informed consent. Negligence in this field can manifest in causing severe aesthetic damage, such as prominent asymmetry in breast or nose surgery; nerve damage causing facial paralysis after facelift surgery; causing skin necrosis or severe scarring due to poor technique; or performing surgery that led to a result substantially different from what was promised and agreed upon in advance.

Medical Malpractice in Orthopedic Surgery

In orthopedics, especially in joint replacement surgeries (hip or knee), negligence can manifest in choosing an implant of inappropriate size or type for the patient; wrong positioning or poor angle of the implant, causing pain, limping, and instability; damage to vital nerves or blood vessels during surgery (for example, damage to the peroneal nerve in knee surgery causing "foot drop"); or failure to diagnose and treat infection after surgery, leading to the need for difficult repeat surgeries.

Medical Malpractice in Abdominal Surgery (General Surgery)

In common surgeries such as laparoscopic gallbladder removal, classic negligence is damage and cutting of the common bile ducts instead of the intended duct. This error causes severe liver damage and requires complex reconstruction surgeries. Additional examples are causing perforation in the intestine during colonoscopy or other surgery, and failure to identify the perforation in time, leading to the development of severe and life-threatening infection in the abdominal cavity (peritonitis).

Part 3: Damages, Compensation, and the Way to Securing the Future

The main purpose of a medical malpractice lawsuit is to place the injured party, as much as possible, in the position they would have been in had there been no negligence, through awarding monetary compensation. Compensation is calculated based on different "heads of damage":

• Pain and suffering: Compensation for non-monetary damage. This amount is determined by the court based on the severity of the injury, the injured party's age, the disability percentages determined for them, and the impact of the injury on their life.
• Lost wages and earnings: Compensation for past lost wages (from the day of injury until the judgment) and compensation for damage to the injured party's future earning capacity, which takes into account the loss of ability to work and earn a living until retirement age.
• Medical expenses: Full reimbursement for all medical expenses incurred in the past and expected in the future, including the cost of corrective surgeries, medications, physiotherapy and rehabilitation treatments, orthopedic devices, and more.
• Third-party assistance and care: Compensation for the need for help in daily functioning, whether it's household help or in severe cases, the need for a dedicated caregiver.
• Housing and vehicle adaptation: In cases of significant disability, compensation will be awarded for home adaptation (elevator, widening openings) and purchasing an adapted vehicle.
• Shortened life expectancy: In tragic cases where negligence led to shortening the injured party's life expectancy, special compensation will be awarded for the "lost years."

The amounts awarded can reach hundreds of thousands and even millions of shekels, according to the severity of the damage and its impact on the injured party's life.

Part 4: The Process of Filing a Lawsuit – The Practical Guide

Filing a surgical medical malpractice lawsuit is a complex process requiring close legal accompaniment.

• Stage 1: Collecting Complete Medical Documentation This is the basis for any lawsuit. All relevant medical documents must be collected: referrals, test results, complete hospitalization file from the hospital (including anesthesia sheet, surgery report, and nursing records), and documentation from every medical entity you were treated by after discharge.
• Stage 2: Contacting a Medical Malpractice Attorney This is the most important stage. Choose a medical malpractice attorney for whom this is their main area of specialization. The attorney will examine the medical material, assess the lawsuit's chances, and explain the expected process.
• Stage 3: Obtaining a Medical-Legal Opinion According to law, a medical malpractice lawsuit cannot be filed without attaching an opinion from a medical expert from the same field (for example, a plastic surgeon in a lawsuit about plastic surgery, or an orthopedist in a lawsuit about orthopedic surgery). The expert will determine in their opinion whether there was deviation from the standard of care and whether this deviation caused damage. An experienced attorney will know how to refer you to the most appropriate and senior expert.
• Stage 4: Filing the Lawsuit and Managing the Process After receiving the opinion, the attorney files a detailed statement of claim with the court. From this moment, the process is usually conducted against the insurance companies of the hospital and doctors. In many cases, the process ends in settlement, but if not, the case will be managed in court until a judgment is reached.

Statute of Limitations: Don't Wait Until the Last Moment

The statute of limitations period for filing a medical malpractice lawsuit is 7 years from the day of discovering the damage (which is usually the day of surgery). In the case of a minor, they can file the lawsuit until reaching age 25. A long wait makes it difficult to collect evidence and prove the lawsuit, so it's recommended to act as soon as possible.

Summary: Knowledge is Your Power on the Path to Justice

Dealing with damage caused as a result of surgical medical malpractice is difficult and exhausting. Alongside the health and mental struggle, stands the financial and legal challenge. It's important to remember that you are not alone in this battle. Contacting professional legal consultation is the first and right step in the journey to securing your rights and receiving compensation that will enable you and your family optimal rehabilitation and a better future. Don't give up on your right to receive justice.

The LawReviews website was established with the aim of being a central and reliable gateway to quality and accessible legal information for the general public in Israel. The website believes that knowledge is power, especially when dealing with complex legal situations. We provide comprehensive articles, guides, and reviews in various legal fields, written by professionals in clear language. Our goal is not only to provide information, but also to help users locate and contact expert and leading attorneys in their field, to ensure receiving appropriate and professional legal representation.