Surgery goes wrong in two quite different ways. In the first, a recognized risk materializes despite careful work — the bleed that was always possible, the infection nobody could have prevented. That is a complication, and it is not negligence, however devastating.
In the second, something was done that a competent surgeon would not have done. Both get described to patients in the same reassuring language, usually by the person who did it. The distinction is what an independent review is for.
The errors that need no argument
A small category of surgical errors is not seriously defensible, because there is no version of competent practice in which they occur:
- Wrong-site surgery — operating on the wrong side, the wrong limb or the wrong level of the spine
- Wrong-procedure surgery, and surgery on the wrong patient
- Retained foreign objects: a sponge, an instrument or a needle left inside, which count procedures exist specifically to prevent
These are tracked by hospitals as events that should never happen, and the checklists and counts designed to prevent them are documented. Where one occurs, the question is usually not whether there was a failure but how far the consequences reached.
The errors that are actually argued about
- Damage to an adjacent organ, nerve or vessel. Sometimes a recognized risk of the procedure; sometimes a departure. The operative note, the anatomy and whether the damage was recognized during surgery all matter.
- Anesthesia errors: dosing, airway management, monitoring failures and the drug given in error.
- Post-operative failures, including bleeding or infection that was developing in recorded observations and not acted on — a claim about the recovery period rather than the operation.
- Surgery performed without proper consent, including a procedure materially different from the one agreed.
- Operating on the wrong findings, where the diagnosis itself was wrong.
- Fatigue, understaffing and supervision, including the trainee left to do more than they should have been.
- Retained hardware or misplaced implants, and devices fitted incorrectly.
Nerve injury during surgery is common enough to have its own treatment pathway; see nerve damage claims.
What consent does and does not cover
The consent form is the first thing produced when a patient complains, and it is widely misunderstood. Consenting to a procedure means accepting its recognized risks. It does not mean consenting to have the procedure performed negligently, and it is not a waiver of a malpractice claim.
Consent has its own separate question too: whether you were told what you needed to know to make the decision, including the material risks and the alternatives. A procedure done adequately but agreed to on inadequate information can still support a claim.
How a surgical claim is proven
- The operative note, written by the surgeon, which sets out what was intended and what was done.
- The anesthesia record, a minute-by-minute account of the patient’s condition throughout.
- Nursing and circulating records, including instrument and sponge counts.
- Pre-operative planning, imaging and the consent discussion.
- The post-operative record, including observations, escalation and any return to theater.
- Independent expert review by a surgeon in the same field, on whether the care departed from the standard and whether that departure caused the harm.
Maryland requires a certificate from a qualifying expert before the claim proceeds, and it is filed with the state health care dispute office first, as with any medical malpractice claim.
Deadlines
Maryland malpractice claims generally run five years from the injury or three years from discovery, whichever comes first, with different rules for children.
Retained object cases are the classic illustration of why the discovery date matters: an object can sit for years before pain or imaging reveals it, long after the five-year date from the operation would suggest the claim had gone. Do not decide for yourself that it is too late.
