Is My Post Operative Infection Considered Medical Malpractice?

Medical staff in the middle of a surgery - Post Operative infections - The Pagan Law Firm

A hospital is a place of healing and recovery. It’s where people seek treatment and undergo surgical procedures for various reasons. Within the walls of hospitals are operating rooms that are expected to follow disease control policies to prevent infection after operations. While operating rooms are often compliant, incision site infections still happen. When they do, the consequences can be disastrous. Surgical site infections can result in blood infections or sepsis. Worse yet, surgical complications like organ failure happen, along with immune system issues following a surgical site infection.

Patients who suffer any infection after surgery will require treatment or corrective surgery. If the infection occurs in a vital organ, emergency surgery may be necessary.

Surgical site infections are preventable events. Any infection following a surgical procedure may indicate a hospital’s failure to prevent surgical site infections. On the other hand, a surgical site infection may be the result of risk factors that are beyond the scope of the operating room staff.

Considering this, you may be wondering if surgical wound infections entitle you to file a lawsuit. The answer is “it depends.” Learn more about when to file a lawsuit following a surgical site infection.

What Is a Surgical Site Infection (SSI)?

Let’s begin with what a surgical site infection is. The Centers for Disease Control and Prevention defines a surgical site infection (SSI) as an infection after surgery. The site of wound infection must be at the incision site or near it. The symptoms of a surgical wound infection do not always surface immediately. According to the CDC, it can take as long as 30 days before you begin to experience symptoms. In the case of elective surgery with implants, you can expect symptoms to surface within 90 days.

Surgical site infections are often treatable with IV antibiotics. If body malaise accompanies a surgical wound infection after surgery, a doctor’s treatment can include pain medication. In severe cases, potent IV antibiotics like vancomycin, cefazolin, and metronidazole may be needed. Surgery may also be necessary, especially when the SSI involves an organ or an organ cavity.

What Are the Different Kinds of Surgical Wound Infections

According to the John Hopkins School of Medicine, there are three types of wound infections or SSIs after surgery. The treatment will vary depending on the kind of wound infection. All the same, any wound infection can entitle you to a malpractice claim depending on the cause.

We will look into the causes of infected surgical wounds later. In the meantime, here are the different types of wound infections after surgery:

Superficial Incisional SSI

This is a type of wound infection that occurs close to the surface of the skin. In a superficial incisional SSI, the skin area where the incision site is will exhibit more redness and swelling. There may even be pus draining from the incision area. Even though it’s a less-severe post-operative wound infection, it can develop into sepsis when left untreated. Antibiotics are often the go-to treatment for these infections.

Organ or Space SSI

An organ or space SSI happens when an infection occurs in a body organ. The site of infection may involve several organs or the spaces between them. Left untreated, an organ or space SSI will result in sepsis and organ failure.

An organ or space SSI is a severe surgical wound infection that may require immediate surgery when discovered. More potent antibiotics may also be necessary depending on the microorganism causing the infection.

Deep Incisional SSI

A deep incisional SSI happens when infection occurs beneath the surface layer of the skin. The areas involved in a deep incisional SSI are the muscles, fascia, and other surrounding tissue.

It’s not always necessary to get surgery to correct a deep incisional infection. Instead, a surgeon will often prescribe strong antibiotics like cefazolin and metronidazole as treatment.

What Causes Surgical Site Infections?

Surgical site infections can occur due to many causes. Some will make the hospital or operating room staff liable. Others will not.

Knowing the cause of surgical wound infections is a crucial step in determining whether your infection is the result of malpractice or not. Below are the most common causes of infections after you’ve undergone surgery:

An Unsterile Surgical Instrument

Operating room staff must ensure the sterility of medical equipment. As part of an OR’s infection prevention guideline, the surgical team must ensure that instruments have undergone autoclaving and disinfecting. Unfortunately, sterilization procedures do not always prevent infection. A part of keeping equipment sterile is handling it with a strict aseptic technique.

The aseptic technique is the method of handling instruments and the surgical area in a way that minimizes contamination. Without proper handling, medical staff can render instruments like scalpels and retractors unsterile. When this occurs, patients can be at high risk for surgical site infections.

Failure To Maintain a Sterile Environment in Key Parts of the Hospital

An unsterile environment can put patients at risk of developing surgical site infections. The surgeon and the OR staff can render an environment unsterile by not observing proper scrubbing and gowning techniques. Also, the OR staff can touch unsterile surfaces like the back of the gown in the middle of a surgical procedure.

The OR isn’t the only place where patients can develop surgical wound infections. Patients in intensive care units can also be at higher risk due to immune system deficiencies. With a depressed immune system, patients can fall ill and develop surgical site infections quickly.

For the reasons mentioned, the OR staff and other members of the healthcare team must exercise caution when maintaining sterility. Any failure to do so can place patients at risk of developing infections post-op.

Prolonged Surgery

There is a proven correlation between the length of surgery and the risk of developing infections after the surgery. According to the John Hopkins School of Medicine, a procedure that lasts more than two hours is a risk factor for post-operative complications. Some examples of operations that can last longer than two hours are orthopedic operations and brain surgery. Because of the delicate nature of these operations, a surgeon must exercise caution in performing these procedures.

Severe cases and certain conditions will warrant a careful approach from the surgeon. Thus, taking time during a procedure may not necessarily make a physician liable for an infection.

Failure To Implement Guidelines That Prevent Infections

Infection occurs everywhere in the hospital. For this reason, every hospital must have guidelines on handwashing, scrubbing, and gowning to prevent surgical site infections. Each hospital must model its policies based on the CDC’s guidelines for infection control.

When the surgeon or staff fails to observe any of these guidelines, the risk of surgical site infections increases.

The Presence of Risk Factors

Some patients are more at-risk for developing surgical site infections than others. The ones that develop surgical wound infections quicker are those with risk factors. There are many examples of risk factors. The most common one is a medical condition like Type 2 Diabetes.

Besides a medical condition, some drugs can also increase a patient’s risk of developing surgical site infections. Drugs like corticosteroids suppress the immune system, causing patients to experience wound infections at their worst.

Objects Left Beneath the Incision Site

In most surgeries, it’s fairly common for the surgeon to require objects like sponges to be in the surrounding tissue of an organ. The sponges are necessary to soak up blood or discharge that can impede the surgeon’s view. The team will often use several sponges, adding more as necessary.

Unfortunately, there are instances where not all of the sponges are removed before wound closure. When this happens, a patient can develop a deep incisional SSI and must undergo emergency surgery.

To prevent infection, one of the doctor’s instructions before wound closure is a sponge count. The assisting nurse must count the sponges and ensure that all have left the wound site or incision area. Any failure to remove all sponges or implements is a serious act of negligence on the part of the entire surgical team. Such a failure will give you more than enough reasons to file a medical malpractice lawsuit.

Improper Wound Closure and Poor Post-op Wound Care

The skin is a natural barrier to infection. It must remain intact to prevent post-surgery infections or complications.

After surgery, the skin is damaged and less able to ward off pathogens. For this reason, the doctor must close the surgical wound completely. The physician must suture the wound carefully while observing infection prevention guidelines. If a doctor fails to close the wound completely, the patient can develop a superficial incisional SSI. The wound site will usually display increased swelling or redness.

After surgery, the health care team must keep the patient’s wound clean to prevent surgical site infections. The physician and nursing staff must monitor the skin area for signs of infection and render the appropriate wound care. Post-surgery wound care includes cleaning the wound regularly and changing the dressing as necessary. The doctor’s instructions may also include a list of antibiotics to prevent infection. Any failure to care for the wound will lead to delayed healing and infection after surgery.

A Contaminated Caregiver and Lack of Follow-up Care

After surgery, doctors send patients home with only caregivers to administer post-operative care. Caregivers will not always be familiar with the proper ways to maintain wound sterility. As a result, a caregiver may contaminate the wound.

An infection from a contaminated caregiver does not make a surgeon or hospital liable for the infection. However, proper wound cleaning and basic hand hygiene should be part of the doctor’s instructions. Not giving home care instructions can be grounds for you to file a lawsuit.

Follow-up care is just as important as the care delivered in the hospital, especially after surgery. Follow-up care includes further instructions about how to care for the wound and what signs of infection to look out for.

Not following up with a patient or the failure to give post-discharge instructions will constitute a premature termination of the doctor-patient relationship. Terminating the relationship before the patient reaches full recovery will make a physician liable for medical malpractice if a surgical site infection occurs.

The Signs of Infection After Surgery

The CDC identifies three signs of infection following surgery. It is important to note that the signs of post-operative infection are similar to those of other kinds of infections. With this in mind, you need to prove that the physician’s negligence is the cause of your postoperative infection.

Based on the CDC’s guidelines, here are the three signs of infection to look out for.

Pain or Increased Redness or Inflammation at the Incision or Wound

One of the first signs of infection is pain. Pain occurs as a result of inflammation. During the inflammatory response following wound infection, fluid collects near the wound. The fluid presses against the nerve endings, leading to pain.

Pain is treatable with anti-inflammatory medications. IV and oral antibiotics can also reduce swelling, especially in the case of superficial incisional SSIs.

Infected Fluid

Another sign of infection is infected fluid, otherwise known as pus. Pus draining from a wound will often appear cloudy or yellowish. Yellowish or white pus can indicate a bacterial infection. Trained medical personnel may drain pus to determine the cause of the infection. The findings can give the doctor or surgeon an idea of what antibiotics to prescribe during post-operative treatment.


During the inflammatory response, the body’s core temperature increases as the immune system fights off infection. The temperature elevation manifests itself as fever. For a temperature increase to be called fever, regular temperature readings should be above 100º Fahrenheit. In Celsius, this temperature reading must be 37.8º or higher.

Symptoms that can accompany fever are chills, weakness, and body malaise. Treatment usually includes anti-fever medications like paracetamol. Of course, antibiotics are also part of the treatment to prevent the infection from worsening.

How To Tell If Post-Operative Infections Are the Result of Negligence

Not all surgical wound infections are cases of medical malpractice or negligence. As mentioned earlier, some infections happen for reasons that are beyond the hospital’s control, and not all infections are due to surgical negligence. Nevertheless, in the absence of risk factors, you may suspect medical malpractice for wound infection after surgery. It begins with the length of time the signs and symptoms appeared.

As mentioned earlier, surgical site infections usually happen within 30 days after a surgical procedure. The window between your surgery can be as long as 90 days when implants are involved. If your infection happened within either time frame, you can suspect that your surgery was the cause of the infection. In turn, you have a reason to attribute your infection to any shortcomings on the part of the surgeon.

You will also have a reason to suspect malpractice if you received no instructions after discharge. As mentioned earlier, it’s the doctor’s responsibility to ensure that you recover fully after surgery. When complications occur because you were not fully instructed on caring for the wound, the doctor and hospital can be liable, so you will have another reason to suspect medical malpractice and negligence.

Lastly, you can sue your surgeon for any refusal to render treatment. Once again, your doctor cannot terminate the physician-patient relationship without ensuring that you have recovered. Any refusal to provide postoperative treatment constitutes a breach of the physician’s duties, giving you another reason to file a lawsuit if your infection worsens.

Filing a Lawsuit for a Surgical Site Infection in New York

You must call a medical malpractice attorney if you suspect your infected surgical wounds are due to negligence. Your attorney can prove your surgeon’s liability and help you recover compensation for your post-operative infection.

In New York, you can file a lawsuit for a surgical site infection provided that the following conditions are present. Here are the three elements your attorney will establish as you file your medical malpractice lawsuit:

Proving Your Surgeon’s Mistake Caused Your Post-surgery Infection

The first element of any medical malpractice lawsuit is proof that your health was at risk due to a physician’s negligence. Proving that your surgeon is at fault will be challenging, but it’s essential to a malpractice lawsuit. Your attorney can investigate pieces of evidence and documents that will link your infection to your physician’s error. Your attorney can also examine your medical records and speak with experts on your behalf to develop your case.

By successfully proving your surgeon’s error, you will have a more compelling case. With a more compelling case comes a higher certainty of recovering compensation for your post-operative infection. Call us now if you need an attorney with experience in medical malpractice lawsuits in New York.

Establishing and Demonstrating that Your Surgeon’s Error Threatened Your Health Post-Surgery

The next fact your attorney will establish is how the infection post-surgery affected your health. More specifically, your attorney will establish and demonstrate the connection between your surgeon’s mistake and your infection. Successfully proving the relationship between error and your injuries, your attorney can strengthen your case further to maximize the amount you can claim. Get in touch with us at Pagan Law if you suspect negligence to be the cause of your incision site infection.

Filing for Damages

Elsewhere, we’ve clarified the difference between your actual injuries and damages. In the context of surgery, the injury would be your infection. The infection that occurs following your surgery is not the damage. The damages are the results of the infection after your surgery, which can include financial losses from seeking treatment.

Damages may also be non-financial and can include pain and suffering. For example, you may have felt psychological distress while recovering from an infection following surgery. You may also claim damages for being unable to work due to the symptoms of your surgical site infection. Whichever form your damages take, your attorney can prove them and use them to help you recover compensation. For experienced legal representation that gets you complete compensation, don’t hesitate to reach out.

Do You Suspect Malpractice as the Cause of Your Incision Site Infection? Call Us Today!

Surgery is a high-risk procedure that can lead to complications. These complications are preventable for most surgeries. Nevertheless, the risk of wound infection is always present and carries devastating consequences for patients. Patients who are the victims of infection from malpractice have a legitimate cause to file malpractice claims. However, in New York, filing a malpractice lawsuit is too important for a person to do alone.

If you are the victim of surgical malpractice, you need aggressive legal representation that puts you first. Leave nothing to chance. Get in touch with us at Pagan Law and get legal counsel and representation that gets you results in New York.

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