Infections after surgery, are they medical malpractice?

As an Indiana medical malpractice lawyer, I am regularly contacted by people who have developed infections following medical procedures. These infections can be from many types of bugs such as staph or strep. No matter what the particular infection is, these post surgical infections can have serious consequences and can be life threatening.

When thinking about these cases, it is important to remember that infections can develop from most any surgical procedure. Even when medical care providers do everything correctly, post surgical infections can still result. Therefore, just because a patient develops an infection does not mean that any of the doctors or nurses did anything wrong.

Under the Indiana Medical Malpractice Act, medical malpractice occurs when a health care provider, i.e. doctor, nurse or hospital, fails to exercise reasonable care in providing treatment. This requires providers to meet the “standard of care”. It is only when a patient can prove that the doctor or nurse did something a reasonable doctor or nurse wouldn’t have done or prove that the doctor or nurse failed to do what a reasonable doctor nurse would have done, that malpractice exists. Furthermore, the patient must prove that the doctor or nurse’s departure from the standard of care caused them harm or damage.

Because infections can result from surgeries in which healthcare providers are careful, malpractice can be difficult, but not impossible to prove in post surgical infection cases. Obviously, if the records reflect that a surgeon or nurse failed to appropriately sterilize surgical equipment prior to the procedure, malpractice could be proven. In most cases however, this cannot be proven. Therefore, the majority of cases involve examining the follow up care and the doctors recognition and diagnosis of the infection and the antibiotic therapies administered after the infection is diagnosed.

The evaluation of post operative care begins with the post surgical condition of the patient immediately following the procedure and in the days and weeks thereafter. During this post surgical period, physicians must be mindful of any red flags which might evidence the existence of an infection’s presence. These red flags can include, but are not limited to, pain, swelling, redness and fever. If a patient experiences these symptoms following a medical procedure, healthcare providers must be careful to consider infection as a cause of these symptoms. In order to screen for an infection’s presence, physicians often drain the surgical site and culture, or test, the fluid. By culturing the fluid, physicians can determine if the patient is infected, and if so, what antibiotics will work against the particular type of infection the patient has.

If a patient in fact has an infection, physicians often irrigate and debride the infection site. This simply means that the infection site is washed out with sterile solution and cleaned. By surgically cleaning the infection out and administering effective antibiotic therapies, physicians hope to rid the patient of the infection. While this is often the course of treatment for post operative infections, each case is different and all aspects of the care needs to be examined. For example, it needs to be determined if the surgeon recognized the need to culture the wound in a timely manner. It should also be determined if the surgeon should have consulted with an infectious disease doctor in treating the infection. If it is determined that a post surgical infection should have been treated differently, whether more quickly or aggressively, or that different antibiotic therapy should have been used, a patient may have a malpractice case.

While proving the doctor should have treated the infection differently is a significant step in proving a malpractice case, it is only half of the equation. Patients must also prove that the physician’s poor care caused harm to the patient. Spefically, in order for a malpractice claim to have merit, the patient must prove that some harm, over and above having the infection itself, resulted from the doctor’s mistakes. In many circumstances this can prove difficult. For example, if a patient develops a post operative infection, they will likely require prolonged antibiotics, no matter whether the doctor timely recognized the infection or not. If however, the infection is shown to have spread and cause damage during the delay, a case may exist.

In the end, determining whether a valid malpractice claim exists following the develpment of a post operative infection is very fact sensitive. Nevertheless, if patient believes he or she has an infection that should have been treated differently or more quickly, they should speak with an attorney as soon as possible to have their case reviewed.

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