Most people are nervous before going into surgery. This is certainly understandable. There are countless things that could go wrong during a surgical procedure, and a successful outcome is never guaranteed. While some negative surgical outcomes are unavoidable, other times, a patient’s injury or death during surgery is the result of medical malpractice. If you or a loved one were the victim of a surgical error, you may be entitled to financial compensation through a medical malpractice claim.

Medical Standard of Care

A surgeon, just like other medical professionals, has a duty to provide reasonably skilled medical treatment to the patients in his or her care. A surgeon fails to uphold this crucial duty if he or she provides treatment that violates the medical “standard of care.” The medical standard of care is the type of care that a medical professional of similar training and status would have provided in a comparable situation. In most medical malpractice claims, medical authorities offer expert opinions about whether the physician, surgeon, or other medical professional in question violated the medical standard of care.

Types of Surgical Mistakes That May Lead to Medical Malpractice Claims

Surgeons, like everyone else, may make mistakes from time to time. However, some mistakes are so egregious that they are unforgivable. One of the most disturbing examples of these so-called “never events” occurs when an item used during surgery is left inside of a patient’s body. Other examples of surgical errors that may often lead to medical malpractice claims include:

When most patients go in for surgery—especially serious surgeries like knee replacements—they are not concerned with the materials that doctors use. Most patients trust that their doctor is the expert, and will do what is necessary to ensure that the patient can recover quickly and well. Yet sometimes shady business deals are at fault for surgeries gone wrong, and doctors are helpless to remedy them. Such is the case with a device that until very recently was used to aid with knee replacement surgery, the OtisKnee, distributed by OtisMed Corporation.

In December, according to The New York Times, the former CEO of OtisMed pled guilty in a New Jersey federal court to criminal charges of distributing adulterated medical devices. The OtisKnee was not cleared by the Food and Drug Administration before OtisMed began to distribute and sell the device to American hospitals, and 18,000 of the adulterated devices were sold and distributed between 2006 and 2009. The device was marketed as one that would speed knee surgery and aid in patient recovery, but many patients experienced the exact opposite. In one case, a woman experienced intense and lasting pain after the surgery, and ended up having to have a second knee replacement. Another patient said that the revelation that the device that had been used was likely at fault for her persisting knee problems made her feel like she “had been a guinea pig.”

The Times reports that had it not been for a whistleblower, presumably at OtisMed, the public may never have been made aware that this device was being distributed without FDA approval. Knee replacements are the most common elective surgery performed in the U.S.—roughly 700,000 such operations are performed annually. The FDA medical device approval process is long and arduous, and can cost thousands of dollars for the company attempting to have a single device approved. According to the Times, OtisMed, a California-based start-up, saw an opening in a crowded market. While doctors and other experts say that the device is a good idea, because it was not fully vetted by the FDA, it was never decided if the device was actually able to perform the function it purported to do.

It has been several years since Michigan-based medical device manufacturer Stryker issued a voluntary recall of their Rejuvenate and ABH II modular-neck stem metal hip replacements, according to the U.S. Food and Drug Administration. The recall was made after many patients complained that the hip replacement was defective, causing them more pain and suffering than before the implant was surgically inserted. The main issue with the device is that it was found to be subject to a high rate of corrosion at the neck junction.

In November of last year, an agreement was reached in New Jersey that determined that the manufacturer would pay an average of $300,000 per implant in individual lawsuits brought against it. In some cases, depending if the patient is deceased, the payout may be less. In other cases, in which the pain and suffering is determined to be extreme, the payout may be more. The company, in total, would payout $1.4 billion in settlement claims, though the claim must be filed by an individual patient, even in this mass tort case.

If you have experienced pain or suffering because of a Stryker hip implant, the first step is to seek legal counsel. The next is to enroll in the Settlement Program. Enrollment opened on January 16 of this year, and is open until March 2. If you do not enroll in the Settlement Program before March 2, you will not be eligible to receive compensation. The fact that you enrolled in the claims process, however, does not guarantee that you will receive payment either. If you did not register for the settlement by December of last year, it is possible that you are not eligible to enroll. If this is the case for you, it is imperative that you speak with an attorney right away.

Sometimes a medical device meant to provide relief for patients suffering and expedite healing causes more pain than relief. One of these devices is known as a pain pump, most commonly used in patients recovering from shoulder surgery after a serious shoulder injury. According to the New York Times, these devices became popular in the late 1990s because they allowed patients to leave the hospital earlier while they received narcotic painkillers for recovery through the pump. While the pain pumps had received clearance from the U.S. Food and Drug Administration, the FDA had never cleared the devices for use in joints.

It was not long until several young patients returned to their surgeons suffering from chondrolysis, a rare ailment in which the cartilage dies, precipitating the painful condition of a bone grinding on an adjacent bone. One orthopedic surgeon told the Times that he had lost many hours of sleep trying to figure out what was causing the chondrolysis before several medical studies identified pain pumps as a likely culprit.

Throughout 2010 and 2011, hundreds of lawsuits were filed against the manufacturer of one widely implemented pain pump, I-Flow Corporation. The company was ordered to pay millions of dollars in settlements to patients who had experienced negative side effects, many who had to have shoulder joints entirely replaced. The FDA issued a warning discouraging the use of pain pumps in joints, and required manufacturers of anesthetics to change labels, encouraging doctors not to use such anesthetics through pain pumps.

Though the manufacturer has come under fire for defective devices in the past, this year the da Vinci Sp Intuitive single port robot system used in surgical procedures is expected to hit the consumer market, according to MedGadget.com. The system is designed to allow for single-incision surgeries, and is a competitor to manufacturing giant Titan. The system was first introduced as a prototype more than five years ago, but only received approval from the U.S. Food and Drug Administration (FDA) last year.

The first da Vinci Intuitive surgical robot was introduced more than a decade ago. When the company first went public, 15 years ago, it posted $10 million in annual sales, though the robot had only been used on 600 patients worldwide. The machine was thought by the medical professional community to be a great symbol of technological surgical advance, and, according to ModernHealthcare.com, “one of the most coveted status symbols of 21st-century medicine.” Yet the $2.3 million machine caused serious side effects and even injury in several patients, due to a disregard for patient safety on the part of the manufacturer and aggressive marketing tactics that often preceded patient testing.

As of 2013, according to ModernHealthcare.com, da Vinci was facing 25 product liability lawsuits. Many of the lawsuits allege that the manufacturer failed to properly train surgeons on how to use the innovative machine, and instead pushed through patents and marketing efforts before hospitals were equipped enough to handle the new technology.