Positioning Injury during Surgery: Medical Malpractice

By: Attorney Andrew M. Rockman

Some patients come out of surgery, with muscular or nerve pain and damage, although the surgical procedure had nothing to do with either area. This is sometimes based upon improper positioning or protection of the body during surgery.

Various operations have different positioning requirements, to allow the surgeon the necessary access to the operative field. For each procedure, there are normally known positions that are necessary, placing responsibility on the surgeon, the anesthesiologist, or both, to be aware that variations from those necessary positions can lead to stretching and damaging of nerves. If the trauma to the nerves from improper positioning goes on long enough this can invite nerve and muscle damage.

In order to evaluate whether or not this type of injury was avoidable, the attorney has to consult with both surgeon and anesthesiologist to determine what proper positioning was required. The medical malpractice attorney must also determine whether or not the use of any surgical aid was necessary to reduce the risk of trauma to the nerve. In addition knowledge of the patient`s history, and any predispositions to such an injury, such as diabetes, arthritis, or any other conditions that impacts on the patient’s ability to be positioned for surgery, can be very important.

These medical malpractice cases are often quite difficult to prove, since the surgeons and anesthesiologists will frequently argue that the nature of this specific surgery on this specific patient, required the unique positioning, that raised the known but acceptable risk. This provides them with a defense known as “udgment”; meaning acceptable medicine permitted tem to make a choice. Even if that choice of one or more options or positions turned out to be the wrong one, the doctor would be protected by the fact that he was permitted to exercise his judgment as to what the thought most appropriate to his patient. The patient’s attorney would have the burden to prove through medical testimony that this was not a matter of judgment but rather a recognized standard of care. 

It is up to the injury attorney to confer with a surgeon, anesthesiologist, and sometimes neurologist, to determine whether or not this specific type of injury is known to occur in this type of operation even when properly performed. The attorney must establish that this type of procedure on a patient with his or her medical history provides recognized ways to avoid nerve and muscular damage. Regrettably, unless the injury is significant, these often turn out to be malpractice cases that might not support the time and expense of proper investigation, evaluation, and litigation.  

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About the Author
Attorney Andrew M. Rockman, chairs the Medical Malpractice Department at the Princeton-based law firm of Pellettieri, Rabstein & Altman and has earned an “AV” rating by the Martindale-Hubbell Law Directory.

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