By their nature, surgical procedures carry inherent risks, which can vary depending on the type of procedure being performed and the patient’s health. However, when errors occur due to negligence or incompetence on the part of medical professionals, the consequences can be devastating for patients and their families. This is why it is important for those who have experienced adverse outcomes during surgery or suspect that they may have experienced medical negligence.

This blog will provide an overview of Alberta’s surgical malpractice claims process. It will explore the legal framework governing such claims, procedural intricacies, and the burden of proof required to establish liability.

Understanding Surgical Negligence

Surgical malpractice is a form of medical malpractice involving surgery. Therefore, a plaintiff must satisfy the same criteria as any other medical malpractice case to succeed in a surgical negligence claim. 

Doctors must inform every patient of the potential risks associated with a particular procedure and obtain a signed consent form before the procedure occurs. However, the patient may suffer serious consequences if a surgical error occurs before, during, or after the surgery.

Injuries Associated With Surgical Negligence

A patient may suffer various types of injuries or damages due to surgical negligence, such as, but not limited to:

  • Organ damage,
  • Nerve damage,
  • Spinal injury,
  • Infection,
  • Surgical instruments left inside the body,
  • Unnecessary surgery on the wrong body part, 
  • Brain injury, or
  • Death.

Pursuing a Surgical Negligence Claim in Alberta

Although some surgical errors are quickly evident, such as an operation on the wrong body part, others are not always immediately obvious, such as a medication error or internal nerve injury. However, in either case, such errors can constitute negligence as they are preventable and may provide a foundational basis for a medical malpractice claim

Just like other medical malpractice claims, a surgical negligence claimant must prove that:

  • an error occurred as a result of the surgeon or their team;
  • their conduct was below the accepted standard of care that a reasonably competent surgeon practicing under similar circumstances in the same area would have upheld; and
  • they sustained an injury due to a breach of the standard of care.  

Many medical malpractice cases involve claims beyond compensation for pain and suffering, given the high costs of commencing a medical malpractice lawsuit. Working with an experienced medical malpractice lawyer can substantially reduce the initial costs of pursuing a medical malpractice claim. A lawyer will review and investigate your injuries and the surrounding circumstances and help you build a sound case to hold the responsible parties accountable. 

Different Types of Surgical Errors 

Various types of surgical errors are, in many cases, avoidable. Some of these surgical errors are described in further detail below:

Fatigue and Burnout

Fatigue is common for medical professionals, including surgeons and their teams, who work incredibly long hours. Naturally, individuals may become tired and make errors throughout a shift due to such fatigue. 


Medical professionals must remain current with advances in medical treatments and procedures. In particular, surgeons must ensure their surgical procedure skills and knowledge is up-to-date to ensure they are prepared for the surgeries they will be performing. In some cases, inadequate skill level, training, or experience can place a patient at risk of unintentional injury.

Inadequate Pre-Operative Planning

Before performing any procedure, a surgeon and their team must prepare a detailed pre-operative plan to ensure that potential complications are mitigated and may be quickly remedied if they occur. During this preparation, appropriate surgical techniques and the patient’s medical history should be reviewed to ensure that the pre-operative plan is as comprehensive as possible. However, insufficient preparation can result in complications and injuries. 

Lack of Communication or Teamwork

Effective teamwork and communication are key throughout the entire surgical process, from initial discussions between a surgeon and a patient to communications between the surgical team during the procedure. Ensuring that all individuals involved are careful and competent listeners who can follow directions and articulate clear instructions is important. If communication is misunderstood or not exchanged, crucial information regarding equipment or medication could result in catastrophe for the patient.   

Key Takeaways Regarding Surgical Negligence Claims

Understanding the potential risks and contributing factors regarding surgical negligence is paramount for patients navigating the complexities of the healthcare system. While surgical procedures promise improved health outcomes, they also carry inherent risks that human error, systemic issues, and communication breakdowns can exacerbate. In medical malpractice cases, it is important to hold the appropriate healthcare providers accountable for their actions, as this can not only provide compensation for the injured patient but also highlight the importance of systemic improvements in patient safety.

Surgical negligence may form the basis for a medical malpractice claim in Alberta, depending on the circumstances. If you or a loved one has sustained injuries as a result of surgical negligence, it is critical to seek legal advice as soon as possible to determine whether you may have grounds for a medical malpractice claim. A lawyer will be able to review your file and determine whether there is sufficient evidence to pursue a viable claim.

Contact the Lawyers at Cuming & Gillespie for Comprehensive Advice and Guidance on Surgical Negligence Claims 

Calgary’s skilled medical malpractice and injury lawyers at Cuming & Gillespie LLP know that medical malpractice claims can be overwhelming and confusing. Whether due to a missed diagnosis, medication error, or surgical negligence, medical malpractice claims can involve substantial hurdles and require careful attention and management, which is why our lawyers are ready to help. Even in the most complex cases, our lawyers have the necessary experience and resources to ensure that your rights and interests remain protected. To discuss your potential claim with a member of our injury law team, contact us online or call us at 403-571-0555.