Surgery went wrong. Who should be held responsible?

After surgery, the natural concern is recovery. When a serious complication or unexpected harm occurs, a difficult question follows: who is responsible? The doctor, the hospital and the health plan may all be liable, but each for different reasons. Understanding that difference is the first step toward deciding, with confidence, what to do.

To see how this works, imagine that weeks after an operation you have persistent pain, and an imaging exam reveals that a gauze pad was left inside your body. This kind of situation is usually treated as a medical error rather than an ordinary technical failure, because counting gauze, sponges and instruments is a mandatory protocol in every operating room. When that protocol is not followed, the conduct is usually classified as negligence. The example shows why distinguishing an error from a complication comes before any other analysis.

A complication is a known risk of the procedure, one that can happen even when every technique is applied correctly. An error is conduct that departs from what is expected of a careful professional, such as leaving an object inside the patient or giving an incorrect dose. Information matters in this assessment too: failing to explain the risks can create liability on its own, even when the technique was appropriate.

This distinction shapes each party's liability. As a rule, a physician is liable when there is fault, meaning negligence, recklessness or lack of skill, and in that case the patient must prove the conduct, the harm and the causal link between them. A hospital is liable differently, because it provides a service. Under Brazil's Consumer Protection Code (Código de Defesa do Consumidor), it answers for service defects regardless of fault, including failures in facilities, hygiene, equipment and organization. A health plan may also be liable when it refers the patient to a particular hospital or doctor, since it selects and makes the care network available.

Given this scenario, the first step is to request a complete copy of the medical record, which is a patient's right. Based on it, it is advisable to gather test results, prescriptions, proof of expenses and the hospital discharge documents. A preliminary feasibility review, based on these documents, helps define who should be named in a lawsuit and which evidence will be needed. Every case has its own particulars, and the analysis always starts with the facts.

This content is for informational purposes only and does not constitute a promise or guarantee of any outcome. Each case requires individual analysis.

© 2026 Diego Amâncio Dias. Original text. Reproduction is permitted with credit to the source.