In short
Harm after surgery is looked at through the separation of a complication from an error, and through the chain of documents.
The separation of a complication from an error, and the chain of documents, are spoken.
The article on the complication stands apart.
The operation note and the consent form are the first voucher.
Related articles: the patient file.
The priority is the safety of health, and preventing the harm from growing
When a new pain, a loss of function, a high fever, bleeding or another unexpected sign appears after the surgery, the first step is not to prepare a legal application, but to receive the necessary medical assessment. Findings of an urgent character should be notified to the health institution without delay. The patient postponing the treatment only with the thought that the evidence should not be lost can lead to the existing harm becoming heavier. The examination, the imaging and the procedures made during the new treatment being put on the record supports both the continuity of the health care and the examination that will be made later.
After medical safety is secured, a record in the order of dates should be formed before the emotional reading of the event. The complaint before the surgery, the diagnosis, the planned procedure, the date of the intervention, the discharge, the first sign of the problem and the dates of the renewed application can be written separately. This work turns the general narration I became unwell after the surgery into a course of events that can be verified. The notes the relatives kept are not counted as a medical record by themselves; they help, however, to see which document will be asked for from where, and which questions were not answered.
This text is for general information. The medical importance of the sign, the path of application and the assessment of liability change according to each patient's clinical position and the character of the institution.
Harm and medical fault are not the same concept
Harm after surgery describes the adverse change that appeared in the person's state of health after the intervention. Medical fault relates to the health worker or the institution not conforming to the professional standard expected in the concrete conditions. The existence of a harm does not of itself prove the fault. In the same way, the realisation of a surgical risk that was known at the start does not mean the file will close automatically. How the risk was managed, whether the information necessary for the patient's choice was given, and whether a suitable intervention was made after the problem developed, are examined.
The assessment generally requires several questions to be answered together:
- Was there a reasonable medical necessity and preparation for the surgery?
- Were the risks peculiar to the patient assessed before the surgery?
- Were the surgical technique and the application of the anaesthesia in conformity with the accepted standard?
- Were the follow-up after the surgery, the warning findings and the discharge plan sufficient?
- Is there a medically explainable link between the harm that appeared and the deficiency that is claimed?
The answer to these questions cannot be drawn only from the photograph of the result. Records such as the operation note, the follow-up schedule and the images are examined by physicians suited to the field of expertise. On the general criteria of medical malpractice, the content what is medical malpractice? provides a conceptual start.
How is the defence of a complication assessed?
A complication is an unwanted result that can appear in the nature of the medical intervention even if the necessary care is shown. This definition does not mean that putting only the label complication on the adverse result is sufficient. Whether the risk is, as regards the event, a result that was really known and whose avoidance is not always possible should be examined with the knowledge of the specialty. The complication also needs to be noticed in time, followed in a suitable way and treated.
An infection after surgery, for example, can be among the known risks of some interventions. If a deficiency is claimed as regards sterilisation, the protective application, the follow-up of the early sign or the suitable treatment, however, merely saying the name of the risk does not end the debate. In a similar way, although bleeding is a known risk of surgery, the disregarding of unusual findings can give birth to a separate problem of care. The legal separation rests on the standard of conduct in the whole process, and not on the name of the result.
For the boundary between a complication and a medical error, the foreseeability of the risk, its preventability, the manner in which the intervention was done and the management afterwards are taken up together. The assessment that takes this separation as its direct subject, is it a complication or a medical error?, explains in more detail the criteria used in the reading of the file.
The patient file should be asked for complete, and early
The health records are the technical memory of the event. Taking only the discharge summary is not sufficient in most claims about a surgery. The assessment notes before the surgery, the laboratory results, the images, the consultations, the anaesthesia form, the operation report, the records relating to the material that was used, the nurse observations, the medication applications and the control examinations should be placed on the same time line. A gap or a contradiction being seen in the records is not counted directly as proof of fault; it forms a heading of examination that needs to be explained, however.
The application should be made in writing, and which documents were delivered should be listed. In the imaging results, not only the report but, if possible, the image itself should also be taken. The file names and the dates of the documents downloaded from the hospital portal can be preserved. If treatment was received later at another institution, the records at that institution should also be gathered separately. The development between the first surgery and the later state of health can thus be compared.
For the scope of access to the patient records and the practice of the application, the guide how is the patient file requested? can be used. The aim of the request for the record is not to change or to interpret the document, but to obtain a copy in conformity with the original of the file, in a safe way.
Information and consent are an independent heading of examination
The patient only signing a form before the surgical intervention may not mean sufficient information. The aim of the intervention, its important risks, the reasonable options, the probable results of the procedure not being done, and the expectations after the surgery should be explained in a way the patient can understand. The information should be presented at a time suitable for being able to decide. How far a form that carries the same expressions, general and for every procedure, shows the conversation relating to the concrete surgery is assessed separately.
The debate on consent and the error of technical application should not be confused with each other. Sufficient consent having been taken does not make a careless surgical application lawful. Conversely, even if the surgery was done in technical conformity with the standard, sufficient information not being given about an important risk can give birth to a separate debate on liability. Emergency situations, the patient's capacity to decide and the relation of legal representation are examined according to the special conditions.
On the elements of the information, its proof and the value of the form, the article what is informed consent? offers complementary information. The patient can record, with a dated note, as far as they remember after the event, what was explained to them and the answers given to the questions they asked; this note does not take the place of the official records, however.
How is an independent medical assessment prepared?
The aim of the second opinion is not to take in advance, from a health worker, the sentence an error was made. The priority is to determine the current state of health and the need for treatment. The file then being assessed in a way suited to the field of expertise can reveal which medical questions need to be answered. A claim relating to the surgical technique and a claim relating to the anaesthesia follow-up, for example, can require different specialties. One branch assessing the whole process can stay insufficient in some files.
In the expert examination, the patient's illnesses before the surgery, the age, the medicines used and the features that increase the risk should not be hidden. The legal assessment cannot be made by selecting only the documents that appear in the patient's favour. The complete file makes it possible to compare whether the adverse result can be explained by the natural course of the illness, by an acceptable risk, or by conduct contrary to the standard.
An expert report can be taken later by the court. A scientific opinion obtained by a party can clarify the questions, but it does not bind the court's assessment. The conformity of the reports with the specialty, their reasoning, and whether they rest on all the records, should be checked.
The separation of a public and a private hospital changes the path of application
The legal character of the institution where the surgery was done affects the competent judiciary of the path of compensation, and the order of the prior application. Harms claimed to have arisen from the service in public hospitals are mostly assessed within the frame of administrative liability. Procedural steps such as an application to the administration and the full-remedy process can come onto the agenda. For the details of this path, the article the path of compensation in a public hospital can be examined.
In private-hospital surgeries, the private-law relation between the patient and the institution, the hospital's duty of organisation and the health worker's professional liability can be debated together. Which of the contractual relation, the tort and the consumer-law dimension will be applied is determined according to the concrete event and the request. More than one person or institution taking a role in the process does not mean that each of them is automatically liable to the same extent.
An administrative complaint, a professional examination, a criminal investigation and an action for compensation do not have the same aim. The refusal of one application may not of itself end all the other paths; a violation being found in one examination also does not create an automatic result of compensation. The aim and the plan of evidence should be built separately for each path, and a contradiction should not be formed among the statements.
The harm and the causal link should be made concrete
In the debate on compensation, not only the fault but also the scope of the harm and its connection with the fault are examined. Additional treatment expenses, the effect on the capacity to work, the need for care, the loss of income and the non-pecuniary effects can come onto the agenda according to the file. It is not expected that every item will be proved with the same documents; health reports, invoices, wage records and documents that show the restrictions of daily life can be used together. The change needs to be explained with concrete examples, in place of an abstract narration my life was ruined.
The causal link focuses on the question whether the harm would have appeared, or would have developed at the same weight, if the deficiency that is claimed had not existed. The patient's pre-existing disorder can affect this link, but it does not always remove it completely. If the harm has more than one cause, the role of each factor is separated medically and legally.
While the harm continues, the new treatment documents and the expenses should be kept regularly. The patient not following the reasonable treatment suggestions can be debated separately as regards the increased part of the harm. Continuing the health care, besides being a priority independent of the legal file, therefore also supports the reliability of the calculation of the harm.
The period and the calendar of the application should be built according to the file
In health disputes, the separation of a public and a private institution, the dates of the event and of learning, the criminal claim and the kind of harm can give birth to different periods. Applying a single limitation period seen on the internet to all the files is not safe. Some procedural periods can be short and can extinguish the right. The surgery, the noticing of the harm, the application to the institution, the delivery of the documents and the dates of notification should therefore be kept on a separate calendar.
As regards surgeries done in Ankara too, the rules of substantive law rest on the frame across the country. The local institution's volume or the tempo of the examination can change; this position does not of itself extend the statutory periods. While the competent authority is determined in a file in Ankara, the character of the hospital, the place where the procedure was done and the legal basis of the request are taken up together.
An early assessment does not necessarily mean bringing the action at once. First the safety of health can be secured, the documents can be gathered, the technical questions can be determined and the suitable path of application can be chosen. For the general frame on the options of seeking a right, the health-law practice area and the process of a complaint about a doctor can be assessed together. In the concrete file the current legislation, the medical records and the expert examination should be taken as the basis.
Where the surgery file is read from
The epicrisis, the consent document and the patient file are read side by side. An amount of compensation and a statistic are not written. A complication is not of itself counted as fault.
The office in Çankaya does not choose the authority the file will go to.
Conclusion
This article is for general information. The document, the period and the procedure of the concrete event should be read separately; there is no promise of an outcome from memory.