What can be done if someone has surgery but is not completely under anesthesia?

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What can be done if someone has surgery but is not completely under anesthesia?

My grandpa needed surgery on his small intestine due to a previous wound surgery done back in the country. They took him to the operating room to do surgery. Prior to that he was supposed to be put to sleepunder anesthesia however he was completely awake the entire time during surgery and felt everything but could not scream or talk due to the drugs. Now he is completely traumatized and this isn’t right. I believe this to be a bad practice as this seems completely inhumane and should stop happening. If this happened to my grandpa who knows who else. How should we go about resolving this? Lawsuit? Report it somewhere?

Asked on April 25, 2015 under Malpractice Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

IF the medical team did something wrong--didn't give him enough anesthesia, gave him the wrong type of drugs, didn't take some drug interactions into accounte, etc.--and that's why he was awake, then IF your grandpa can show (e.g. with a psychiatrist's testimony) that he has suffered medical recognized trauma as a result, he may be entitled to compensation and could potentially sue. He would have to show three things: 1) a medical recognized injury (e.g. PTSD or the like); 2) caustion--that being awake during the surgery caused the injury); and 3) negligence, or unreasonable carelessness--that is, that the medical team was at fault. (If the medical team was not at fault--they gave him the recommended dose, etc. of anaesthesia--and it was just bad luck or an unforeseeable reaction that caused him to be awake, then they would not be liable and he would not be entitled to compensation.) Your grandpa may wish to consult in detail with a personal injury attorney, to see if he may have a case.

Your grandfather could also report the incident to the state medical licensing board, which may investigate and take action--but this would not get your grandpa compensation, though it may lead to some punishment for the responsible doctors (again, if they were at fault).


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