Surgical malpractice is a tort action that occurs when a surgeon fails to act with reasonable care in performing surgery. A plaintiff who brings a surgical malpractice action must prove that his doctor did not act with the competence that a reasonable surgeon would have acted with. The plaintiff then must prove that the doctor's actions caused him some type of compensable harm.
Medical malpractice actions, including actions for surgical malpractice, are handled within the civil court system. That means a plaintiff hires a lawyer who files a lawsuit. The plaintiff must then prove each element of his case by a preponderance of the evidence. The judge or jury will determine if the defendant in fact breached his duty, and if so, will award damages to the plaintiff designed to compensate him for the defendant's negligence. Often, however, cases settle before they get to court and the defendant offers the plaintiff a lump sum dollar amount in order for the plaintiff to waive his right to sue.
In the case of a surgical malpractice case, the plaintiff will generally first suffer some type of harm as a result of a botched surgery. Something may have gone wrong with the actual surgery itself, or the doctor may have done something careless such as leave a surgical instrument or foreign object inside the patient. Generally, any type of surgical mistake a surgeon makes that a reasonable surgeon would not have made can subject to the surgeon to a malpractice case.
Surgeons are required to have medical malpractice insurance to defend themselves against such malpractice lawsuits and to ensure the plaintiff is fairly compensated if a mistake or error is made in surgery. Generally, the insurer will be the one actually paying the legal bills for the lawsuit and who is therefore managing the structure of the case. The insurer will pay up to the limits of the policy.
Because of the high cost of medical malpractice insurance and the prevalence of lawsuits, many states have begun to cap damage awards for surgical malpractice and other malpractice cases. For example, California limits non-economic recovery to $250,000 US Dollars (USD). This means that although a plaintiff can recover his full medical bills and lost wages, his pain and suffering, punitive damages and other losses that were not actual and direct monetary losses are limited. There is some controversy over whether this type of tort reform is appropriate, but many states have adopted such rules to try to keep costs down in the health-care industry.