Hernia mesh surgery
Call Toll-Free 24 Hours:

When Are Surgical Errors Considered Medical Malpractice?

Legally Reviewed and Edited by: Terry Cochran

Even the best surgeons make mistakes. Filing a malpractice claim and proving negligence, however, takes legal skill.

What Is A Medical Mistake?

Medical malpractice is generally understood to be an injury that occurs through the negligence of medical staff at a hospital or some other medical professional. Negligence can be an injury that happens during a surgical procedure — such as a surgeon operating on the wrong part of the body — or an error in diagnosis, treatment, or aftercare that results in injury.

Experiencing a negative outcome to a surgical procedure doesn’t automatically imply negligence, however. The State of Michigan has determined certain general standards for many surgical procedures — but most malpractice lawsuits hinge on a legal determination of how the injury was caused and its seriousness.

Causation is something that will be vigorously litigated in any medical malpractice claim.

An attorney from Cochran, Kroll & Associates, P.C. will be glad to meet with you to learn more about your situation, your concerns, and make recommendations. After this initial, free consultation, if we decide to work together, it will be on a contingency fee arrangement. This means that we don’t get paid until we settle your case or win a judgment in court.

Elements Of A Medical Malpractice Case

Medical malpractice cases are similar to personal injury claims but tend to be much more complex in nature. Success often entails skill in identifying nuances and details involved in the surgery and/or aftercare. All successful medical malpractice cases, including cases involving surgical mistakes, must prove that:

There is a violation of the standard of care, which is an imprecise legal concept that defines the acceptable standard as satisfactory medical treatments and/or procedures that are performed by other medical professionals in good standing in the same geographical area.

How did the medical treatment/surgery and aftercare deviate from a typical or standard process or outcome?

In most medical malpractice cases, there is a thorough evaluation of both customary practices of local surgeons/physicians/anesthesiologists — individuals with similar training and experience — as well as national medical standards.

The injury was the result of negligence, which means the plaintiff (or injured party) must prove that the injury would not have occurred if the defendant was not negligent. This is often the most challenging aspect of a medical malpractice case.

Negligence can take numerous forms, including surgical mistakes, anesthesia errors, unnecessary surgery, improper medication or dosage, and misreading or ignoring laboratory results, just to name a few. Sometimes an injury is caused when a patient is discharged too early following surgery, or inadequate follow-up care leads to an injury.

The injury is serious and has resulted in significant and measurable damages. Typical measurable damages are permanent disability, severe/chronic pain, emotional trauma, inability to work at the same job (or inability to work at all), and treatment costs.

The evidence you’ll need includes all the medical records related to your injury and verification of this injury by a qualified medical professional. You have the right to request copies of all your medical records, including instruction sheets, authorization forms, x-rays, etc.

When you speak with one of the medical malpractice attorneys from Cochran, Kroll & Associates, P.C., we’ll help you determine where and when the medical error occurred, and the best course of action moving forward. We are a rapidly growing personal injury and medical malpractice law firm, helping individuals and families recover the damages they need and deserve after a medical or surgical procedure that proved to be injurious through the negligence of another.

Damages In Medical Malpractice Lawsuits

Michigan, like well over half of the states in the US, has passed legislation that limits the amount of money a plaintiff can receive in a successful lawsuit. Michigan’s cap is defined in Michigan Compiled Laws section 600.1483, which places a cap on non-economic damages. This category of damages includes anxiety, stress, loss of enjoyment of life, and other negative impacts on a plaintiff’s life — commonly referred to as pain and suffering.

Every year, the caps are reviewed and adjusted according to the consumer price index. In January 2019, the non-economic damages cap was adjusted for inflation to $465,900 based on the consumer price index.

Non-economic damages may be increased under three conditions:

  • The plaintiff has suffered a permanent functional loss of a limb because of injury to the brain and/or spinal cord and is hemiplegic, paraplegic, or quadriplegic.
  • The plaintiff has suffered a permanent impairment of cognitive capacity and has become incapable of living independently.
  • The plaintiff has suffered permanent loss of or damage to reproductive organs.

However, Michigan separates specific types of injuries that are severe or permanent into a different category, and that cap is significantly higher and was adjusted to $832,000 in 2019.

There is no cap on the other category of damages, which are economic and measurable in nature. These damages include past and future medical expenses, lost income, harm to a plaintiff’s ability to work, and other measurable financial losses.

Statute Of Limitations

Medical malpractice is governed by Michigan laws, and there are time limits associated with filing a lawsuit. In Michigan, medical malpractice injury claims may be filed within two years of the surgery/injury that is the source of the claim. The law also makes provision for a claim based on discovery after the fact. In such cases, the claim must be filed within six months of when the injury was discovered.

There are also special filing deadline provisions for minors (under 18) and people living with serious mental illness built into the law.

Serving Notice And Other Requirements

A medical malpractice case in Michigan is initiated by filing a Notice of Intent to File Suit (NOI). This must be in writing and served upon the prospective defendant(s) at least 182 days before the actual lawsuit is filed. Serving the NOI puts the statute of limitations on hold for 182 days.

During this period, the plaintiff must submit an affidavit of merit, signed by a qualified medical and/or dental professional as defined in the law (MCL 600.2169). This affidavit must be constructed in a particular way, and include:

  • A statement regarding the applicable standard of care
  • The professional opinion that the defendant violated the standard of care
  • A statement articulating how this violation caused the plaintiff’s injuries

The defendant (or defendants) also file an affidavit of meritorious defense, signed by a qualified expert, responding to the plaintiff’s claims.

One of the benefits of working with an attorney at Cochran, Kroll & Associates, P.C. is that you greatly increase your chances for a successful outcome. You also won’t miss any filing deadlines.

In general, the factors considered in settlement discussions and court hearings include:

  • The duration and severity of your complications
  • The costs associated with additional surgeries and treatments
  • Lost income as a result of the injury
  • Whether or not the injury and/or disfigurement is permanent

Contact Us

Have you been injured because of an invasive procedure or some other type of surgical or medical treatment error? Senior Partner Eileen Kroll specializes in medical cases at Cochran, Kroll & Associates P.C., and her medical training as a Registered Nurse are invaluable in evaluating your injuries for legal purposes, including an assessment of ongoing medical conditions and the treatment you may need going forward.

Contact us toll-free (24 hours) at 866-MICH-LAW or use our convenient online contact form to schedule your no-obligation consultation.

Disclaimer : The information provided is general and not for legal advice. The blogs are not intended to provide legal counsel and no attorney-client relationship is created nor intended.

Mark is a freelance writer living near Concord, New Hampshire. He works with a range of businesses and professional associations in their strategic messaging and content development projects. He also provides content development services to nonprofits and government agencies, helping them distill complex topics and make information more accessible across multiple platforms. When he's not writing, he enjoys working outside and finds mowing his fields on a warm sunny day to be a peak experience.



Testimonial Image


There is no obligation for a case evaluation & no fee is charged unless a recovery is made.
  • This field is for validation purposes and should be left unchanged.

Your privacy is important to us. Cochran, Kroll & Associates, P.C. does not share, sell, rent, or trade personally identifiable or confidential information with third parties for any purpose.
Call Now Button