New York Surgical Error Lawyer

While all medical procedures pose at least some degree of risk to patients, few treatments are as dangerous as invasive surgery. When completed with a high level of precision and care, surgery can help save lives, stop the spread of all types of diseases, and rehabilitate patients from even the most severe accidents. Conversely, when mistakes are made during an operation, surgeons risk inflicting serious or even fatal injuries to patients. Although surgical errors are often preventable, they occur frequently in our country’s healthcare facilities. 

According to the National Center for Biotechnology Information (NCBI), 4,000+ mistakes happen in surgeries each year and as a result, over $1.3 billion in damages is recovered yearly by plaintiffs of surgical malpractice lawsuits. Nonetheless, there are countless cases where victims receive no compensation because they did not seek legal assistance or did not hire an attorney who is qualified for the job. If you or a loved one has been hurt during a surgical procedure, you need a surgical error lawyer who will advocate relentlessly on your behalf until justice is served.

New York Surgical Error Lawyer

What is a Surgical Error?

In law, the term “surgical error” refers to any preventable and unexpected mistakes during an operation that was not caused by the procedure’s known complications/risks (i.e. caused by human error on the part of a surgeon or medical assistant). Every healthcare professional is held to a standard of acceptable care and when surgical errors occur as the result of negligence, by definition, this standard has not been met. 


If you have been injured as a result of a surgical error, the following steps should be taken immediately:  

  1. Seek Medical Attention: If you have sustained injuries from a surgical error, receiving proper medical care from a trusted doctor should be your first priority. Not only will seeking professional care decrease the likelihood of further injury and infection, it may also uncover crucial information about how/why the surgical error happened in the first place. 
  2. Document Injuries and Treatments: To strengthen any potential lawsuit that is filed on your behalf, make sure to keep all medical reports, treatment expenses, and documentation related to your injuries/symptoms. Be wary that even your own insurance company may attempt to avoid, delay, or underpay initial claims submitted without guidance from an attorney, and negotiating with insurance providers directly is typically not advised. 
  3. Contact a New York Surgical Error Lawyer: Before confronting a healthcare professional or an insurance company about damages from a surgical error, it is crucial to consult with an experienced attorney. Once you find a lawyer they will likely make a swift evaluation of your case and consult with you on the viability of legal recourse. 

How and Why Do Surgical Errors Occur?

When something has gone wrong during the course of a surgery, before it can be ruled a “surgical error,” it must be understood who is responsible, what damages occurred as a result of their action/inaction, and why they were unable to successfully complete the procedure. While there are innumerable amount of ways surgeries can fail as a result of human error, some of the most common mistakes are:

  • Performing the correct surgery on the wrong patient/performing the wrong surgery on the right patient.
  • Operating on the wrong side of the body or on an incorrect body part entirely. 
  • Improper administration of anesthesia prior to an operation. 
  • Negligent and/or reckless decisions made by surgeons/surgical staff in emergency surgery.
  • Insufficient sanitation of surgical equipment resulting in infection. 
  • Forgetting surgical tools (e.g. sponges, towels, retractors) inside a patient.
  • Failure to consult a patient’s medical history thoroughly/failing to fully disclose the risks of a procedure. 

While these errors may seem uncharacteristic of a highly skilled surgeon, it is important to note that surgeons have one of the most demanding jobs in healthcare and even the best doctors can succumb to pressure while on the job. Although surgical errors happen frequently due to incompetence, more often than not, mistakes in the operating room can be traced back to fatigue and as a result, impaired decision making. Moreover, the extreme levels of fatigue and stress associated with performing surgeries have been known to lead clinicians to use drugs and/or alcohol on the job, further increasing the likelihood of a dangerous surgical error.

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New York Surgical Error Lawsuits

For victims of surgical mistakes, the path forward may seem daunting; however, there are ways you can mitigate the risk of further injuries and navigate through the financial uncertainties associated with large medical bills. Fortunately, individuals who have been injured by surgical errors have the right to file a medical malpractice lawsuit and in cases where a clinician (the defendant) is found to have acted negligently, the patient they have harmed (the plaintiff) may be entitled to compensation for their damages. 


In civil lawsuits filed in New York, the burden of proof falls on the plaintiff and the evidentiary standard is defined as a preponderance of the evidence. In other words, for a healthcare professional’s actions to be considered negligent, the plaintiff must prove the following elements:

  • Duty of Care: The medical industry has established standards regarding how a qualified clinician (e.g. doctors, nurses, ER technicians) would perform their duties, and all healthcare professionals are obligated to treat each patient in accordance with these standards. Surgeons, anesthesiologists, and any other clinicians involved with a patient’s surgery have a duty of care that must be met. 
  • Breach of Duty: Breach of duty refers to any situation where a clinician fails to meet the required standard of care when treating a patient (e.g. the occurrence of surgical mistake). Since healthcare professionals must provide their patients with adequate care while minimizing any potential risks, when human error directly or indirectly results in the further harm of a patient, there has likely been a breach of duty. 
  • Causation: Causation refers to the connection between the healthcare provider’s mistake and the injuries suffered by their patient as a result. A plaintiff’s injuries must be connected to the defendant’s fault, otherwise, it will be very difficult to recover damages. 
  • Damages: To receive a settlement in any personal injury lawsuit, there must be damages to justify monetary compensation. While damages can include all sorts of harm (physical, emotional, etc.), some of the most common types which yield compensation are:
    • Past and future pain and suffering 
    • Past and future medical expenses and rehabilitation costs 
    • Past and future lost income 
    • Loss of the injured party’s services claimed by their husband or wife  
    • Loss of parental guidance claimed by the injured party’s children


In New York Civil Practice Law and Rules (Section 214-a), the statute of limitations for medical malpractice lawsuits is defined as two and half years, (i.e. 30 months) from when a patient suffered their injury; however, it should be noted that under New York civil law, there are exceptions for certain types of surgical errors. For example, in cases where a patient discovers an object left behind in their body from a past surgery, the statute of limitations can be extended to one year from the patient’s discovery.

If you or a loved one has been injured as the result of a surgical error, it is crucial you find a surgical error lawyer that is capable, competent, and well-versed in personal injury law. At Halperin, Halperin & Weiskopf, PLLC., we have over 40 years of experience protecting victims of medical malpractice and successfully litigating even the most challenging of cases. 

If you need help, call us (212-935-2600). Our firm treats every prospective client like family and in the event, we cannot help you directly, we will find someone who can.

surgical error leads to wrongful death