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Infection After Surgery: Can You File A Malpractice Lawsuit?

Going through any surgery is difficult. It's even harder when you develop an infection during the healing process. If you've developed an infection after surgery, you may be considering filing a lawsuit against the doctor or hospital. Here's a closer look at some things you need to consider when deciding whether this is a good idea.

Did someone's negligence contribute to the infection?

There is a risk of infection with any surgery. Even if the doctors and nurses follow protocols to the letter, there's still a chance of a patient developing an infection. Therefore, you can't file a malpractice suit just because you developed an infection -- because the infection itself is not proof that anyone intentionally or neglectfully harmed you. In order to have a valid case, you must prove that someone who was responsible for your care acted in a way that led to your infection. This can be very difficult. However, here are a few examples of situations in which negligence can lead to an infection -- and where you may find proof.

  • An eye witness saw a nurse handle a dirty cloth and then touch your surgical site without washing his or her hands between.
  • Several nurses in the operating room agree that they saw the surgeon drop and instrument on the floor during surgery, and then use it without sanitizing it.
  • Your doctor and nurses failed to give you instructions for cleaning the surgical site, so you did not clean the site -- and developed an infection.

Who will the case be against -- the doctor or the hospital?

Many patients assume that if they were wronged in a hospital, they need to file a lawsuit against the hospital. But this is not always the case. Nurses are generally employees of the hospital, so if it's a nurse whose actions contributed to your infection, then yes, you will want to name the hospital in a lawsuit. However, doctors are generally independent contractors; they're not employed by the hospital. So if it is a doctor you feel has wronged you, you'll want to file a lawsuit against the doctor.

If you're not sure whether it as a nurse or doctor whose actions led to your infection, you probably don't have a strong case, since you need to have proof of someone's negligence or wrongdoings to file a successful medical malpractice suit.

Since infections can develop after surgery even when protocols are followed, it can be tough to file a malpractice case when you feel someone's negligence has led to your infections. However, an experienced medical malpractice attorney can work with you to gather evidence and hopefully build a viable case.