Medical Malpractice in Surgery or Anesthesia

Examining the existence of medical malpractice when surgery is performed under general anesthesia constitutes a complex challenge with unique characteristics that do not exist in other medical fields. Generally, the decision to proceed with surgery under general anesthesia is a fateful decision made against the backdrop of the need to resolve a significant and serious medical problem, for which it is usually not possible to claim compensation as it is related to the patient's underlying condition and unrelated to any negligence.

Additionally, there is another difficulty stemming from the fact that the patient cannot know the nature of the actions performed during surgery and obviously cannot testify about them, unlike other fields where the patient is usually able to remember the medical procedures that were performed (or should have been performed) and the course of events. Here, the situation is entirely different, and usually it will only be possible to know what occurred in the patient's body through careful and professional reading of the protocols documenting the course of events during and after surgery, to the extent that matters were indeed documented as required by the Patient Rights Law.

From our extensive experience handling these lawsuits, we can point to several aspects requiring meticulous and professional attention.

Was the full picture presented to the patient regarding the chances/risks involved in performing the surgery? In this context, the doctor has an obligation to explain in clear and exhaustive language to his patient the range of complications that may be caused as a result of performing the surgery, and to ensure that the matters were not only communicated but also properly understood by the patient. This obligation also relates to presenting the range of existing therapeutic alternatives besides the surgery currently proposed. The law and case law require full and detailed documentation of the explanations provided, within the framework of a "consent form" that must be signed by the patient before performing the surgery. It should be noted that often it will be possible to receive compensation solely on the basis of lack of sufficient explanations, even if the surgery itself was performed flawlessly. Recently, there has been a welcome trend toward increasing the amount of compensation awarded for "violation of autonomy," that is, violation of every patient's basic right to receive a detailed and exhaustive explanation regarding the nature of the medical procedures performed on their body.

Additionally, it is necessary to thoroughly examine whether all preliminary tests required by the nature of the planned surgery were performed. We have encountered situations where not all required tests were conducted before deciding to perform surgery. Failure to perform those preliminary tests can in many cases seriously harm the chances of surgical success or even cause serious damage that would have been avoided had all those tests been performed as required. Often, conducting preliminary tests can reveal the existence of a contraindication that prohibits performing the surgery. Therefore, failure to perform those required and necessary tests, and consequently surgical failure or causing damage as a result, will require awarding appropriate compensation for these omissions.

At the same time, it must be remembered that performing surgery under anesthesia is an action involving many risks even without negligence, and that by nature "not every surgery succeeds," and for all these reasons there will be no entitlement to receive compensation. The operating doctor must ensure that his patient is fully aware of the state of affairs without hiding anything from him, and without adopting a paternalistic approach, whereby the doctor presumes to decide for himself what is good and right for his patient, an approach that has long since passed from our midst, and rightly so.

Our experience over many years teaches that unusual things have been done and are being done within the framework of medical documentation of surgeries, exploiting the fact that the anesthetized patient has no ability to verify the truth of matters: ranging from an operating doctor who (accidentally) injured a certain vertebra of the spine and did not document this in the record, to the claim that a senior doctor performed a complex head surgery himself, even though the surgery protocol was signed by a resident doctor who is not authorized to perform such surgery, with the purpose of allowing that resident to "accumulate" hours for the purpose of obtaining a medical expert license from the Ministry of Health.