How to File a Surgical Error Malpractice Claim

Facing Surgical Mistakes

Having surgery is stressful enough without worrying about mistakes in the operating room. When a surgical error leads to unexpected pain or further health complications, it can leave you feeling overwhelmed and unsure of your next steps. In California, patients have legal protections if a preventable surgical mistake occurs. Understanding your options and the legal process is the first step toward holding the responsible parties accountable and seeking compensation for your injuries. Many people in California dealing with medical malpractice also want to know about medication errors and how those differ from surgical mistakes.

What Is a Surgical Error?

A surgical error is a preventable mistake that happens during surgery. Not every bad outcome is malpractice—sometimes, things go wrong despite everyone’s best efforts. But if a surgeon, nurse, or hospital staff member acts carelessly or outside accepted standards, and you’re harmed as a result, that’s when a surgical error may become a malpractice claim. Examples include operating on the wrong body part, leaving instruments inside the body, or anesthesia mistakes.

Key California Laws

California law protects patients from negligent care. The state follows a “standard of care” approach—surgeons and hospitals must act as a reasonably careful medical professional would in the same situation. If they don’t, and you’re harmed, you may have grounds for a malpractice lawsuit. California’s Medical Injury Compensation Reform Act (MICRA) limits certain damages in medical malpractice cases. You generally have up to one year from discovering the injury, or three years from the date of injury, to file a claim, whichever comes first. This is shorter than the window for many other types of personal injury claims.

Common Surgical Error Examples

• Performing surgery on the wrong body part
• Leaving surgical tools or sponges inside the patient
• Damaging nearby organs, nerves, or tissue
• Failing to monitor vital signs
• Anesthesia errors (wrong dosage or failure to monitor)
• Infection due to unsanitary conditions
• Operating on the wrong patient

These errors can lead to additional surgeries, infections, permanent disability, or even death. For those dealing with tragic outcomes, wrongful death claims may be an option for families.

Steps to Take After a Surgical Error

1. Seek Immediate Medical Care: Protect your health first.
2. Request Detailed Medical Records: Get copies of surgical and post-op reports.
3. Document Your Experience: Write down what happened, your symptoms, and conversations with providers.
4. Consult an Experienced Attorney: California’s malpractice laws are complex, and deadlines are strict.
5. Avoid Direct Negotiations: Let your attorney handle communications with hospitals or insurers.

Many people find it useful to read more about proving surgeon negligence in malpractice cases before moving forward.

Gathering Evidence

Building a strong malpractice claim in California requires thorough evidence. This typically includes:

• All medical records related to the procedure
• Imaging results (X-rays, CT, MRI)
• Second opinions from other doctors
• Photographs of injuries or surgical scars
• Expert testimony from a qualified surgeon
• Billing statements and details of related expenses

If you’re unsure where to start, steps to take after a medication error injury can offer helpful parallels.

Notifying the Provider

California law requires you to notify the healthcare provider at least 90 days before filing a lawsuit. Your notice must describe what happened and how you were harmed. This gives the provider time to respond and may lead to settlement talks before going to court.

Filing the Claim

After the required notice period, your attorney will file your complaint in the appropriate California court. The complaint should detail:

• What happened during surgery
• How the provider’s actions fell below the standard of care
• The injuries and losses you’ve suffered as a result

You’ll need to serve the complaint on all defendants (surgeons, hospitals, etc.). Your attorney will help ensure these steps are handled correctly.

The Role of Expert Witnesses

In California, expert testimony is often necessary to prove a surgical error occurred. An expert—usually another surgeon—will review your records and explain how the standard of care was breached. This is critical for convincing a judge or jury of malpractice.

Damages You Can Recover

If your claim succeeds, you may be able to recover:

• Medical expenses (past and future)
• Lost earnings or diminished earning capacity
• Additional surgeries or rehabilitation costs
• Pain and suffering (capped by MICRA at $350,000 for non-economic damages)
• Other out-of-pocket losses

Learn more about common surgical errors and their impact to understand what damages may apply.

Settlement vs. Trial

Most surgical error claims in California settle before trial. Settlements can resolve the case faster and give you more certainty. However, if a fair settlement isn’t possible, your attorney may recommend going to court. Either way, preparation and strong evidence are key to a successful outcome.

FAQs about Surgical Error Claims in California

What counts as a surgical error in California? A surgical error in California is a preventable mistake during surgery, such as operating on the wrong body part, leaving surgical instruments inside the patient, or anesthesia errors, caused by actions outside accepted medical standards.

How long do I have to file a surgical error malpractice claim? You usually have one year from discovering the injury, or three years from the date of the error, whichever comes first, to file a surgical error malpractice claim in California.

What damages can I recover in a California surgical error case? You may be able to recover medical expenses, lost wages, pain and suffering (with limits on non-economic damages), and other costs related to the surgical error.

Do I need an expert witness for my surgical error claim? Yes. California typically requires expert testimony to show that the surgical error fell below the standard of care expected from a medical professional.

Can I sue for surgical errors that happened years ago? There are strict deadlines for filing a claim. If you recently discovered the error, you may have up to one year from the date of discovery, but not more than three years from the date the injury occurred.

Take the Next Step

If you or a loved one has suffered from a surgical error in California, you don’t have to face the aftermath alone. Attain Law’s attorneys are here to answer your questions and guide you through every step of your medical malpractice claim. For help with your case, contact us today for a free consultation or call (888) 970-8627. We’re here to support you.

Disclaimer: This is an advertisement. The information provided is for general purposes only and is not legal advice. Consult a qualified attorney for your specific case. Attain Law cannot guarantee outcomes, as results vary by situation.