Can a Surgical Error Lawsuit Be Filed if the Surgeon Performed the Wrong Surgery?

Can a Surgical Error Lawsuit Be Filed if the Surgeon Performed the Wrong Surgery?

March 20, 2024

While modern medicine has invented some amazing interventions and treatments, mistakes in the surgical theater, sadly, still do happen. If you faced the disastrous reality of undergoing entirely the wrong operation, Maryland law offers you the potential to seek relief for your suffering. Wrong-site surgery falls into a well-defined category within the broader realm of surgical negligence, and a skilled surgical error attorney should be your first call.

Medical Malpractice Explained

Not just any unexpected or negative surgical outcome qualifies as a malpractice claim. To have a case against a surgeon, hospital, or another healthcare provider in Maryland, you must first show that the standard of care provided to you fell below what is expected of medical professionals under similar circumstances. Additionally, you must show that you suffered damages because of the error.
In layman's terms, you must show that the average competent surgeon in the medical community would not have made the same error, and that the mistake directly caused a compensable injury to you

Wrong-Site Surgeries

Surgical errors involving an incorrect surgical site present a particularly compelling basis for bringing a lawsuit. While a defense attorney might challenge your case by claiming your underlying illness required multiple procedures anyway and that ultimately your health improved as a result of the unintended procedures, these types of errors almost always point to some breach of duty and therefore offer some of the best prospects for success in malpractice law.

Courts and juries, as well as healthcare review boards licensing doctors and hospitals, rightfully look very poorly on a doctor, nurse, or any other member of the surgical team committing an error this fundamental to the practice of medicine. Wrong-site surgery nearly always reflects a breakdown in all the safeguards medical facilities routinely apply to avoid this very circumstance.

For patients in this situation, though success in a lawsuit is more likely than with other types of medical malpractice, proving every step in the process through strong and qualified expert testimony and skilled presentation of relevant medical records remains key. You must also have an experienced lawyer on your side: learn more here about how to connect with a Maryland malpractice lawyer.

Proving Surgical Negligence

Each element must be proven to a standard known as the "preponderance of the evidence." If the injured patient can do this, they've shown that it's probable their physician failed to exercise reasonable care within the accepted standards of the profession.

The elements relevant to wrong-site surgical cases under Maryland law are:


Here, you establish that there was a doctor-patient relationship or that you entered the health care system within the doctor's area of practice, thus creating a duty for them to use reasonable care and skill when treating you.


Proving this element requires expert medical testimony highlighting that there was a departure from accepted surgical standards of practice: most importantly, those designed to accurately confirm the planned surgery site. There were likely multiple professionals working during the procedure, so determining where the fault lies may require some investigation by your attorney in cooperation with various qualified medical experts who examine all procedures before, during, and after the operation.


This element focuses on connecting the surgical team's breach of duty with the injuries you subsequently suffered. This is not only the original health problem left untreated while your surgeon operates unnecessarily elsewhere, but also any additional interventions you had to undergo (further anesthesia, blood loss, potential surgical complications, recovery time) to mitigate the harm caused by the initial error.


Wrong-site surgery patients may have any of a wide range of potential damages, from financial to emotional. Expenses related to the original medical condition, corrective procedures, mental health treatment, lost wages, lost career potential, and emotional pain and suffering must each be analyzed and valued appropriately based on your unique circumstances.

Maryland's Statute of Limitations

Generally, there is a three-year window from the date the wrong-site surgery is discovered, or five years from the time it occurred, for a person to bring a lawsuit. Malpractice actions against government-run entities and health care providers may have shortened deadlines. Maryland also requires some pre-lawsuit procedures to be handled by all potential plaintiffs (like special filings, certificates of merit, and review by an arbitration panel in some cases.) Therefore, contacting an experienced malpractice attorney immediately after identifying your injuries is absolutely crucial.

There are some rare exceptions. If a "foreign object" (such as a surgical tool) has been left inside the patient, or fraud by the physician or hospital delays your timely discovery of the malpractice, some courts in very unusual circumstances may grant relief to pursue late-filed actions.

Always Connect With a Surgical Error Attorney

While pursuing justice may seem straightforward, proving each element of a medical malpractice case requires complex legal maneuvering and thorough knowledge of Maryland's medical liability laws. Don't attempt to navigate these complicated matters alone. Contact a skilled and experienced attorney right away.


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