Surgery is already a stressful experience. Most people going into an operating room aren’t thinking about what happens if something goes wrong — they’re focused on getting through it and getting better. That trust in the surgical team is completely reasonable. It’s also, unfortunately, sometimes misplaced.
We hear from Utah patients and families regularly who are dealing with outcomes that don’t match what they were told to expect. The pain is worse than it should be. The recovery has stalled. The hospital’s explanation feels thin. And there’s this nagging sense that something happened in that operating room — or in the days after — that nobody is being straight with them about.
Sometimes, after we dig into the records, it turns out the complication was a known risk and the care was appropriate. That happens. But more often than people realize, what looks like an unfortunate outcome is actually a preventable mistake — one that has legal consequences.
This post covers five of the surgical errors we see most frequently in Utah malpractice cases, why each one matters legally, and what patients should know before deciding whether to pursue a claim.
What Is the Difference Between a Surgical Complication and Malpractice?
This question trips people up more than almost any other, so it’s worth addressing directly before getting into specific errors.
Not every surgical complication is malpractice. Patients acknowledge inherent surgical risk when they sign informed consent forms, and a bad outcome alone doesn’t establish negligence. What matters legally is whether the provider’s conduct fell below the accepted standard of care — meaning a competent surgeon, with similar training and in similar circumstances, would not have made the same mistake.
Utah’s medical malpractice law is governed by the Utah Health Care Malpractice Act (Utah Code § 78B-3-401 et seq.), which sets out the rules for filing a claim, the statute of limitations, and — importantly — a mandatory 90-day pre-litigation panel review that must happen before a lawsuit can even be filed. That requirement has real deadlines attached to it. If you’re sitting on this, thinking you’ll look into it eventually, that’s a risk worth taking seriously. Speak with a Utah medical malpractice attorney sooner rather than later.
1. Can a Surgeon Be Sued for Operating on the Wrong Site or Wrong Patient?
The medical community calls these “never events.” The name says it all — these are errors so preventable, so fundamental, that the expectation is they simply do not occur. The Joint Commission has tracked wrong-site surgeries as sentinel events for years. They keep happening anyway.
A surgeon operates on the right knee when it’s the left that needs repair. A healthy kidney is removed instead of the diseased one. A patient is prepped and taken into an OR for a procedure that was scheduled for someone else entirely. These situations are devastating — and they are almost never the result of one person having a bad day. They reflect a chain of failures: site markings that weren’t made or weren’t checked, a surgical time-out that was skipped or treated as a box-checking exercise, patient identification protocols that broke down somewhere between admissions and the operating table.
The World Health Organization’s Surgical Safety Checklist was developed specifically to interrupt that chain. Hospitals that don’t follow it rigorously — or that allow a culture where those steps are rushed — are taking on serious liability exposure when things go wrong.
From a legal standpoint, these cases are among the clearest our team handles. The nature of the error often satisfies the doctrine of res ipsa loquitur — the mistake itself is evidence of negligence. You don’t need an expert to explain why operating on the wrong patient is below the standard of care.
2. What Happens If an Anesthesiologist Makes a Mistake During Surgery?
Getting anesthesia right is not a matter of approximation. An anesthesiologist is responsible for calculating and delivering an exact medication dosage for a specific patient, accounting for their weight, age, health history, and any medications they’re taking, while monitoring their physiological response in real time throughout the entire procedure. There’s very little margin for error, and when that margin is exceeded, the consequences can be severe.
Too much anesthesia can deprive the brain of oxygen. The result can be permanent neurological damage, a vegetative state, or death. Too little, and a patient may experience anesthesia awareness, regaining consciousness during surgery while still paralyzed by neuromuscular blocking agents, completely unable to signal distress. The American Society of Anesthesiologists acknowledges that awareness during surgery is rare. But rare is not zero, and when it happens because a provider failed to monitor a patient appropriately, it is malpractice.
The anesthesia errors that most frequently underlie Utah malpractice claims involve a failure to review the patient’s full medical history before the procedure, dosage miscalculations, improper intubation or airway management, and, critically, a failure to respond to signs of distress in real time. These cases require expert anesthesiology testimony and a detailed read of the anesthesia record, which is a document many patients don’t even know exists. Our medical malpractice team knows exactly what to look for in those records and how to translate what they show into a viable claim.
3. What If a Surgeon Left Something Inside Me After Surgery?
We understand that this one is hard to believe the first time you hear it. Surgical sponges, clamps, retractors, gauze pads, and needles are left inside patients every year across the country. The Agency for Healthcare Research and Quality puts the rate at roughly 1 in every 5,500 to 7,000 surgeries. That’s not a rounding error — that’s a systemic problem.
What makes retained instrument cases particularly difficult for patients is the timeline. A retained sponge or clamp doesn’t always announce itself immediately. Patients develop unexplained abdominal pain weeks after surgery. They run fevers that don’t resolve. They cycle through follow-up appointments where providers treat the symptoms without identifying the cause, sometimes for months. By the time the foreign object is discovered, the patient has often undergone significant additional harm — infection, internal damage, additional surgical procedures to correct what should never have happened in the first place.
Surgical teams are required to conduct instrument counts before and after every procedure. When those counts reveal a discrepancy, the protocol is clear — you don’t close the patient until you know where everything is. When that protocol is bypassed, when a count is wrong and nobody catches it, when a patient is sutured up with something still inside them, that is a breach of the standard of care with consequences that can follow a patient for years.
These cases often involve shared liability between the surgeon, the scrub nurse responsible for counting instruments, and the hospital as an institution. Attorney Matt Purcell spent eight years before joining AVS representing and defending major Utah hospital systems and physician groups — he knows precisely how these institutions defend retained instrument claims and how to counter those defenses effectively.
4. Is Nerve Damage After Surgery Always Malpractice?
Surgeons work in anatomically crowded spaces. Nerves, major blood vessels, and adjacent organs are often inches from the operative site. When a surgeon’s technique takes them outside the appropriate tissue plane, or when they cauterize or cut in the wrong location, the collateral damage can be permanent.
Here’s something patients should understand: not all nerve damage is negligence. Some procedures carry a disclosed, accepted risk of nerve involvement, and when a patient is properly informed of that risk, and a complication occurs despite competent surgical care, it may not rise to the level of malpractice. That’s a hard thing to hear, but it’s true, and any attorney who tells you otherwise without reviewing your records is not being straight with you.
What is malpractice is when nerve damage results from a surgeon using improper technique, failing to use available imaging guidance that would have identified the nerve, or operating in the wrong anatomical location entirely. Post-operative foot drop following spine surgery. Facial nerve damage after head and neck procedures. Bowel or bladder perforation from abdominal surgery. These are injuries our team has seen — injuries that alter the course of someone’s life.
If a member of your surgical or post-operative team told you that what happened “sometimes occurs” after this type of surgery, that explanation deserves scrutiny. The question is not whether the complication is medically possible. The question is whether it was caused by a deviation from the standard of care in your specific case. That distinction requires a careful review of your records by someone who knows what they’re looking at.
5. Can I Sue for What Happened After Surgery — Not During It?
This is the surgical malpractice category that surprises people most — because the surgery itself may have gone exactly as planned. The negligence happens in recovery.
Post-operative care runs on protocols. Nurses and physicians monitor vital signs, watch for infection, track the patient’s neurological status, flag abnormal lab values, and are expected to escalate concerns up the chain of care in a timely way. When a shift ends and findings don’t get communicated to the incoming team, when a rising fever is charted but not acted on, when a patient’s blood pressure is trending in the wrong direction and nobody calls the attending — that failure can be the decisive factor in whether a patient recovers or doesn’t.
The CDC has documented how failure to identify post-surgical sepsis in time remains one of the most common preventable causes of in-hospital death. Sepsis develops fast. A care team that doesn’t recognize the signs and escalate appropriately can lose a patient in hours. That is not an acceptable outcome when the protocols to prevent it exist and were simply not followed.
Post-operative malpractice cases are genuinely more complex to litigate than intraoperative errors. The records span multiple shifts and multiple providers. Timelines have to be reconstructed carefully. Defendants point fingers at each other. But these cases are winnable, and we have built them successfully. The key is knowing how to trace the chain of care from the moment surgery ended to the moment harm became irreversible — and identifying exactly where someone failed.
How Do You Know If You Have a Surgical Malpractice Case in Utah?
The honest answer is that you usually can’t tell on your own, and you shouldn’t have to.
To establish surgical malpractice in Utah, four elements need to be present: a duty of care existed; that duty was breached; the breach caused the harm; and the patient suffered real damages as a result. The second and third elements — breach and causation — are almost never self-evident outside of wrong-site cases. They require expert testimony, thorough record review, and an attorney who understands both the legal and clinical dimensions of the claim.
What we’d tell anyone who calls our office is this: if something about your surgical outcome doesn’t sit right with you, have the conversation. Not because every case turns into litigation, but because you deserve an informed perspective from someone who has actually reviewed your situation — not a guess based on a brief description.
How Long Do You Have to File a Surgical Malpractice Claim in Utah?
Under Utah Code § 78B-3-404, patients generally have two years from the date they discovered — or reasonably should have discovered — the injury to file a claim. There is also a four-year outer limit from the date of the act of malpractice, regardless of when it was discovered.
Add the mandatory 90-day pre-litigation panel review that Utah requires before any lawsuit can be filed, and the window is tighter than most people expect. Waiting is one of the most common mistakes injured patients make. It costs them options.
Frequently Asked Questions
Can I sue the hospital, or only the surgeon?
Both can be liable. Hospitals face institutional negligence claims and can be held vicariously liable for employees and agents acting within the scope of their duties. In many surgical malpractice cases, the surgeon, the nursing team, and the hospital all share some degree of responsibility. Part of what we do is identify every party whose conduct contributed to the harm.
I signed a consent form. Does that eliminate my right to sue?
No. Informed consent covers the known, disclosed risks of a procedure — it is not a release of liability for negligence. A surgeon who operates on the wrong site, leaves an instrument inside a patient, or fails to monitor appropriately cannot point to a consent form as a defense. If your harm resulted from a breach of the standard of care rather than a disclosed risk, your right to pursue a claim is intact.
What does it cost to hire a Utah medical malpractice attorney?
AVS Law Group handles medical malpractice cases on a contingency fee basis. No upfront fees. No hourly billing. You pay nothing unless we win. We take on the cost and complexity of litigation so that the quality of your legal representation isn’t determined by your financial situation going into it.
How long do these cases take?
It depends on the case — but Utah surgical malpractice claims generally take longer than standard personal injury matters because of the pre-litigation panel process, expert witness requirements, and the scope of discovery involved. Some cases resolve in a year or two. Others go to trial and take longer. We are direct with our clients about timelines and where their case stands at every stage.
What damages are recoverable?
In Utah surgical malpractice cases, recoverable damages can include past and future medical expenses, lost wages and earning capacity, physical pain and suffering, emotional distress, and loss of enjoyment of life. In wrongful death cases, surviving family members may also pursue claims for loss of consortium and related losses. Utah caps noneconomic damages in medical malpractice cases, which is one of the reasons having an experienced attorney advocating for your total recovery matters.
Talk to Our Team
If your surgical outcome has left you with more questions than answers, we’d like to hear from you.
The medical malpractice attorneys at AVS Law Group — Allred, Vogt & Stuart — handle these cases with the same approach we take to every case we litigate: thorough preparation, honest assessment, and a genuine commitment to the people we represent. We’ve secured significant verdicts and settlements for Utah malpractice victims, and we don’t take on cases we don’t believe we can win.
Free consultations. Contingency fee representation. Clients across Salt Lake City, Provo, Ogden, and throughout Utah.
Call 801-876-7771 or contact us online to speak with a Utah medical malpractice attorney.
This post is for general informational purposes only and does not constitute legal advice or create an attorney-client relationship. For guidance specific to your circumstances, please contact AVS Law Group directly.
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