by Needle & Ellenberg, P.A.
If you suspect a surgical error in Florida caused serious harm to you or a family member, you may be entitled to compensation. Surgical errors can range from universally preventable “never events” like wrong-site surgery and retained instruments, to intraoperative judgment calls that turned out badly, to post-operative failures where a manageable complication may have become catastrophic because no one responded in time.
The analysis can depend on where in the surgical process the error occurred and what the medical records show. Founding partners at Needle & Ellenberg, P.A. bring more than 70 years of combined experience handling Florida surgical error claims.
Why Choose Needle & Ellenberg, P.A.
Founding partners Andrew Needle and Andrew Ellenberg bring more than 70 years of combined experience in Florida medical negligence and plaintiffs’ injury law. Both handle plaintiffs’ injury and death cases exclusively.
Practice Focus
Andrew Ellenberg focuses on plaintiffs’ injury and medical negligence cases, with practice concentrations that include anesthesia injuries, surgical errors, post-operative complications, and obstetrical malpractice. He earned his J.D. cum laude from the University of Miami School of Law in 1988. Martindale-Hubbell rates him AV Preeminent. Florida Super Lawyers has listed him every year since 2005, and The Best Lawyers in America has listed him every year since 2009 for plaintiffs’ medical malpractice and personal injury work.
Andrew Needle is Board Certified in Civil Trial Law by The Florida Bar. His practice concentrations include surgical error litigation, complex medical negligence, and hospital system liability cases. He holds a J.D. cum laude from the University of Miami School of Law (1977) and a B.S. from Cornell University (1974). He is a charter member of the Miami chapter of the American Board of Trial Advocates. Best Lawyers in America named him “Lawyer of the Year” for Medical Malpractice Law, Plaintiffs, in Miami for 2020 and 2025.
Verdicts and Settlements
Needle & Ellenberg, P.A. has recovered hundreds of millions of dollars for clients across all practice areas, including multiple eight-figure results in medical malpractice matters. Many of the healthcare cases involved birth injuries, delayed diagnosis, surgical errors, anesthesia complications, and health system negligence. Our fees are contingent. You pay nothing unless we recover compensation for you.
What Our Clients Say
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“Andrew Ellenberg is the best personal injury attorney. He was professional, responsive, and truly cared about getting the best outcome for my case. I highly recommend him to anyone looking for a knowledgeable and trustworthy lawyer. Mr. Ellenberg handled everything quickly and efficiently.”
– Chris Harris
Types of Surgical Error Cases We Handle in Florida
Surgical errors are among the leading causes of inpatient malpractice claims nationally. The Joint Commission’s 2023 Annual Review identified wrong surgery and unintended retention of foreign objects as two of the most frequently reported sentinel events of the year. These “never event” categories may carry particular weight in malpractice analysis because national safety authorities classify them as errors that should never occur when proper protocols are followed.
- Wrong-site, wrong-patient, or wrong-procedure surgery. Operating on the wrong limb, wrong side, wrong organ, or wrong patient is classified as a “never event” by the National Quality Forum because it is considered entirely preventable. The Joint Commission’s Universal Protocol requires preoperative verification, site marking, and a pre-incision timeout. When any step is skipped, breach of the standard of care may rarely be in dispute.
- Retained surgical items. Sponges, needles, instrument fragments, and guidewires left inside the body after closure may be another “never event” category. Per AHRQ, these events may typically result from failed surgical counts and inadequate communication among operating room staff. Most cases may require a second surgery to remove the item and often lead to infection, perforation, or sepsis. In Florida, the discovery of a foreign body such as a sponge, clamp, forceps, or surgical needle may be treated as prima facie evidence of negligence under the medical negligence statute.
- Surgical technique errors. Cutting the wrong structure, damaging adjacent organs, creating anastomotic leaks, and intraoperative vessel injuries can be the more complex category because they involve judgment calls. These cases may turn on qualified medical opinion about whether the specific choice fell below the standard of care given the operative field and the circumstances in the moment.
- Anesthesia errors during surgery. Dosing errors, airway management failures, failure to monitor vital signs, and delayed response to adverse events can cause hypoxic brain injury, cardiac arrest, or death. Anesthesia records, pulse oximetry data, and OR response times may carry most of the evidence.
- Failure to respond to intraoperative complications. When a surgical emergency develops mid-procedure, the surgeon is expected to recognize it and respond, which may include calling for help, converting to a different procedure, or aborting. Failure to respond to hemorrhage, cardiac events, or loss of airway in a timely way can cause preventable harm.
- Post-operative failures. Missed infections, delayed recognition of anastomotic leaks, internal bleeding, or premature discharge in the hours and days after surgery can be a distinct category. Post-op cases may often involve hospital nursing staff, monitoring systems, and discharge protocols. Florida AHCA investigations at AdventHealth Tampa and Baptist Hospital of Miami have documented wound care order gaps and sterile technique documentation failures, institutional patterns that may support claims where post-surgical infections resulted in sepsis, necrotizing fasciitis, or death.
Florida Legal Requirements for Surgical Error Claims
Standard of Care and Never Events
Florida law defines the standard of care as what a reasonably prudent health care provider would have done under the circumstances. The standard is specialty-specific. What is expected of a radiologist reading a scan is not what is expected of a primary care physician, and neither is what is expected of an emergency physician evaluating acute symptoms. That specialty framing matters when multiple providers across multiple encounters contributed to the injury.
In surgical cases, the “never event” categories may create an unusually clean analysis. When the National Quality Forum and The Joint Commission have labeled an error as something that should never happen with proper protocols in place, there may be limited room for a defense argument that the conduct met the standard of care. Wrong-site surgery and retained surgical items can be the clearest examples. Surgical technique errors and post-operative failures can be more nuanced and may typically require detailed qualified medical opinion on whether the choice or delay fell below the standard.
Informed Consent
Florida’s Medical Consent Law may provide a separate cause of action when a patient was not informed of the substantial risks and hazards of a surgical procedure before agreeing to it, and one of those risks later materialized. The law generally requires that the patient have a general understanding of the procedure, available alternatives, and substantial risks. A properly executed written consent can create a rebuttable presumption of valid consent, so the plaintiff may need to prove the consent obtained was inadequate. Informed consent claims may often be paired with traditional malpractice claims in surgical cases.
Why Every Surgical Complication Does Not Equal a Case
Surgery can carry real risks that are not eliminated by competent care. Diagnoses can be missed or delayed by healthcare providers acting reasonably under the circumstances, and complications can occur despite proper technique. Individual anatomy or surgical history can make some injuries more likely even when the surgeon did everything right. Florida law requires proof that the provider’s conduct fell below what a reasonably prudent provider would have done and that the failure caused the injury. A complication that falls within the known risks of a procedure, which were disclosed and consented to, may usually not be malpractice. A complication that resulted from a failure to follow a basic safety protocol may often be a different story.
Statute of Limitations and Presuit Notice
Florida imposes strict deadlines on medical malpractice claims, and missing the deadlines can result in a potentially viable case being barred from court. Our lawyers can help you determine whether your potential case is within Florida’s statute of limitations.
Before any medical malpractice lawsuit can be filed in court, Florida law requires that the Claimant send the potential defendant healthcare providers a Notice of Intent, after which there is a 90-day presuit screening period for the exchange of information between the parties. With rare exception, the Claimant’s attorney must include with the Notice of Intent a verified affidavit(s), from a qualified expert(s), who under oath says what were the actions and/or omissions of the potential defendant healthcare provider(s) that caused injury and damage to the Claimant.
What Damages Are Recoverable in Florida Surgical Error Cases?
Economic Damages
Economic damages can include the financial losses that were sustained and/or that reasonably will be suffered in the future, due to the malpractice. These can include lost wages, diminished earning capacity, past and future care, treatment, therapies and services. These can include the cost of corrective surgery, additional hospital stays, rehabilitation, ongoing medical care tied to the injury, lost wages, and diminished earning capacity. For injuries requiring lifelong treatment, life care plans may calculate future medical needs over the patient’s remaining lifespan.
Non-Economic Damages
Non-economic damages include pain, suffering, mental anguish, loss of enjoyment of life, scarring and disfigurement since the time of the alleged malpractice and into the future. While there was once a limit on the amount that could be recovered for this category of damages, those caps were overruled by Florida’s highest court. Some healthcare providers claim that the caps on non-economic damages still apply to a certain category of claimants who receive health insurance through Medicaid, but this is regularly disputed by lawyers for victims of malpractice. Florida’s high court has not yet ruled on this issue.
Wrongful Death Damages
When a surgical error results in death, Florida’s Wrongful Death Act may control who can recover. Surviving spouses, children under the age of 25, and a small category of other family members may pursue lost support, lost companionship, and mental pain and suffering.
Florida’s Wrongful Death Act contains a significant restriction that applies only to medical negligence cases. Under Florida’s wrongful death statute, children of the deceased who are not under 25, and parents of a child who is not under 25 and unmarried, cannot recover non-economic damages when the death was caused by medical malpractice. This law often referred to as Florida’s “Free Kill” law is a sad and unfortunate reality for people who have lost loved ones due to malpractice, but fall within a legal protection that exists only for healthcare providers.
Contact Needle & Ellenberg, P.A.
If you believe a Florida healthcare provider caused serious harm to you or a family member through a surgical error, the first step is a free case evaluation. Medical malpractice cases are fact-intensive and deadline-driven. Early review by experienced counsel makes a difference in what the records show and what the timeline preserves.
We offer free, no-obligation case evaluations. Our staff speaks Spanish, and we represent clients in Miami, Fort Lauderdale, Orlando, Tampa, and throughout Florida. Contact us to schedule your consultation. There is no fee unless we recover compensation for you.