Elective surgery is all surgery not arising from a medical emergency that is scheduled in advance. Elective surgery includes a wide range of procedures, from vision correction to plastic surgery to biopsies. Sometimes, these surgeries do not live up to the patient‘s expectations and unhappy patients wonder if they have a medical malpractice claim against the doctor or healthcare center.
Generally patients who are unhappy with the results of elective surgery do not have a claim against the doctor or healthcare professional. Under New Mexico law, doctors must obtain a patient‘s informed consent to any treatment or operation. When patients opt for elective surgeries, they are usually required to sign informed consent forms in advance.
Consent forms advise the patient of the treatment, alternatives, and the potential risks of treatment. For elective surgery, consent forms often warn that even simple surgeries carry inherent risks, and that not all patients will get the results that they hope for. By signing a consent form for an elective surgery a patient is acknowledging that the result of their surgery may not live up to their expectations.
Additionally, for elective surgery, most doctors and clinics will not guarantee results. Doctors and staff may inform the patient of success rates and the probability of success, but they rarely guarantee what a particular outcome will be. In the rare case that a doctor or hospital signs a written guarantee of a certain result, a patient may have a claim based on breach of contract, but not medical malpractice unless the medical services provided fall below the standard of care. In sum, in the absence of a written guarantee, patients who are unhappy with the results of an elective surgery may have little legal recourse.
There are some nuances of which to be aware. Without a written warranty, a patient will generally not have a claim against a doctor if their laser eye surgery did not give them 20/20 vision or their nose is not perfectly straight after a rhinoplasty. However, a patient may have a claim if they believe there was medical malpractice involved or they were harmed by the surgery.
Medical malpractice involves a negligent act or omission by a healthcare professional. To be negligent, the person or institution must have acted in a way that falls below the accepted standard of treatment. A forgotten surgical sponge or an infection due to a leaking implant would fall within this category. If at any point the health care professionals act in a way that falls below accepted medical standards, there will be a case for malpractice. This includes the entire medical relationship, from failure to obtain informed consent and giving vital pre-operative instructions to surgical procedures to post-operative care.
It is important to understand the difference between not being happy with a result and actually being injured by the negligence of a doctor or hospital. If there is medical malpractice involved, it is also important to keep in mind that New Mexico has a three-year statute of limitations for most medical malpractice cases. However, there are several issues that may shorten the statute of limitations for many malpractice cases. For instance, claims against governmental entities including state, local and county hospitals or clinics have a Tort Claims Notice deadline that runs in 90 days from the date of the alleged negligence.
Due to the unique deadlines associated with medical malpractice claims, it is imperative to contact an experienced personal injury attorney as soon as possible once you suspect malpractice.