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Knowledge, experience, and dedication have brought the lawyers of The Epstein Law Firm to the forefront of their profession. From personal injury to civil litigation, they have built a strong record of success in achieving justice for their clients.
Our practice is diverse and well-established. Recognizing that every case is unique, we always begin by listening to you.
The Epstein Law Firm, P.A. has been successfully representing clients throughout New Jersey since 1973
Surgery asks for extraordinary trust. A patient is anesthetized, unable to see or question anything, while a team of strangers performs an irreversible procedure. When that team makes a preventable mistake — operating on the wrong site, leaving a sponge inside the body, nicking an organ that should have been protected, or failing to watch the patient afterward — the consequences can mean more operations, permanent injury, or death. Johns Hopkins researchers have estimated that medical errors kill more than 250,000 Americans a year, and surgical errors are among the most preventable of them: the safeguards against wrong-site surgery and retained instruments have been standardized for two decades.
The Epstein Law Firm represents patients and families harmed by surgical errors in New Jersey hospitals, from our Rochelle Park office. This page explains the errors we investigate, why they happen, and how New Jersey law treats these claims, including the expert affidavit every surgical malpractice case requires. It is part of our New Jersey medical malpractice practice. If you suspect a surgical error, call (201) 231-7847 for a free review of the records.
The most notorious surgical errors are also the most inexcusable. Operating on the wrong body part, performing the wrong procedure, or operating on the wrong patient are classified as “never events” because the verification steps designed to prevent them — site marking, patient identification, and the pre-incision “time out” required by The Joint Commission’s Universal Protocol — are simple and mandatory. When a wrong-site surgery happens, some step in that chain was skipped or ignored, and the records usually show where.
Sponges, gauze, needles, clamps, and fragments of instruments left inside a patient cause pain, infection, obstruction, and repeat surgery, sometimes years later. Surgical counts exist precisely to prevent this: sponges and instruments are counted before the procedure, before closure, and after, and an unresolved count requires imaging before the patient leaves the room. A retained object case therefore turns on the count records and imaging as much as on the operation itself.
Some injuries to surrounding structures are recognized risks of an operation performed correctly. Others are not. Perforating the bowel during a routine procedure and failing to recognize it, severing a nerve outside the operative field, or injuring the bile duct in a laparoscopic gallbladder removal through misidentified anatomy are errors of technique or attention. Our page on punctured organs addresses these injuries in depth.
Positioning injuries, airway failures, medication errors by the anesthesia team, and inadequate monitoring during the operation sit at the boundary between surgery and anesthesia care. Our anesthesia errors page covers that specialty; in a surgical case we evaluate the whole team’s records together, because responsibility is often shared.
A technically successful operation can still be ruined by what follows: internal bleeding not caught on rounds, an anastomotic leak dismissed as normal pain, sepsis warning signs charted but not escalated, or a patient discharged with instructions that were never given. Failure-to-monitor and failure-to-rescue claims are surgical error cases, and they are proven from the nursing notes and vital-sign records as much as from the operative report.
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Investigations of surgical errors rarely find a single careless moment. They find systems that failed in sequence: a site mark covered by drapes and never re-checked, a count discrepancy waved through because the schedule was behind, a substitute team member who did not know the plan, an attending surgeon supervising two rooms at once, a post-operative warning that reached a nurse but never a physician. Fatigue, production pressure, and hierarchy — the reluctance of junior staff to challenge a senior surgeon mid-procedure — run through the literature on these events.
North Jersey patients receive surgical care at facilities including Hackensack University Medical Center, The Valley Hospital in Paramus, Englewood Hospital, Holy Name Medical Center in Teaneck, and Jersey City Medical Center, among others. Size and reputation do not immunize any operating room: the same volume that builds expertise also builds the scheduling pressure and handoff complexity in which errors breed. Our job in a surgical error case is to reconstruct, minute by minute and record by record, which safeguard failed and who was responsible for it — the surgeon, the anesthesia team, the nursing staff, or the hospital whose protocols and staffing framed them all. Our broader surgery malpractice page discusses liability for surgical care generally; this page focuses on the errors themselves.
The injury in a surgical error case is rarely limited to the mistake itself. A retained sponge means a second anesthetic, a second incision, and a second recovery, often with adhesions and infection layered onto the first. A bile duct injured during gallbladder surgery can mean reconstructive hepatobiliary operations, drains, and months of illness. A nerve severed outside the operative field can end a career that depended on that hand. Post-operative bleeding missed overnight can cost a patient blood, organs, or life before the morning rounds that finally catch it. Wrong-site surgery adds a particular cruelty: the patient wakes with an operation they never needed on a body part that was never diseased, while the original problem remains untreated and now harder to fix.
The damages analysis follows from that reality. We document the corrective surgeries and hospitalizations the error made necessary, the rehabilitation and home care that follow, the work lost during each recovery, and the permanent deficits — function, mobility, sensation, fertility, continence — that no corrective surgery can restore. For elderly patients, an avoidable second operation can be the event that ends independent living; for children, a surgical injury can shape a lifetime of care needs that must be projected and priced by life-care planners. Families feel the secondary losses too: a spouse’s caregiving hours, a household reorganized around medical appointments, and the particular distress of knowing the harm came not from the disease but from its treatment. A surgical error case must capture all of it, which is why we build the damages record with the same rigor as the liability record from the first expert review.
A New Jersey surgical malpractice claim requires proof that the care deviated from accepted standards and that the deviation caused the injury. Both elements are ordinarily proven through qualified experts — surgeons in the same specialty who review the operative report, anesthesia record, count sheets, imaging, and post-operative notes and can explain, to a jury of non-physicians, exactly what should have been done differently and what difference it would have made.
Three procedural features shape every case. First, the affidavit of merit: under N.J.S.A. 2A:53A-27, a plaintiff must serve an affidavit from an appropriately licensed expert within 60 days after the defendant’s answer (with one possible 60-day extension), attesting that there is a reasonable probability the care fell outside accepted standards. Cases have been dismissed for missing this requirement, so the expert review begins before suit is filed, not after. Second, the statute of limitations: generally two years under N.J.S.A. 2A:14-2, measured from when the patient knew or should have known of the injury and its possible cause — New Jersey’s discovery rule, which matters greatly for retained objects and other latent surgical injuries. Third, informed consent: New Jersey follows the prudent-patient standard, requiring disclosure of material risks and alternatives, and our firm’s own litigation history includes the informed-consent questions taken up in Murphy v. Implicito. A consent form is evidence, not a shield.
On damages, New Jersey imposes no cap on compensatory awards in medical malpractice cases, so a surgical error claim can recover the full measure of added medical care, lost earnings, and pain and suffering. One qualification worth knowing early: claims against nonprofit hospitals can encounter New Jersey’s charitable immunity statute, which limits certain damages against charitable organizations, and punitive damages are separately capped by statute. Identifying every responsible defendant — and the rules that govern each — is part of the first phase of the case.
The Epstein Law Firm can review the evidence, insurance issues, and next steps that may matter in your medical malpractice claim.
Get independent medical care first. If you are suffering complications, a surgeon outside the original team should evaluate you; your health cannot wait for litigation, and a second team’s records often document the error clearly. Request the complete record, including the operative report, anesthesia record, sponge and instrument counts, nursing notes, imaging, and pathology — you are entitled to your records, and gaps or late entries are themselves informative. Do not sign anything from the hospital or its insurer, and do not accept an explanation that all is normal if your condition says otherwise. Mind the calendar: the two-year limitations period and the affidavit-of-merit machinery make early review essential, particularly where the injury is still unfolding. Then have the records reviewed by counsel who litigates surgical cases in New Jersey; the first question is always whether an expert sees a deviation, and that answer should come before any other decision.
We begin with the complete chart, not the summary. The operative report is read against the anesthesia record’s timeline, the count sheets against the nursing notes, and the discharge summary against the vital signs that preceded it. A qualified surgical expert then tests the care against the standard, and where the standard was breached we retain the specialists needed to prove causation and damages: the corrective surgeon who can price the repair, the life-care planner for lasting injuries, the economist for lost earning capacity. Cases are filed in the Superior Court of the county where the care occurred or the defendants do business, and we prepare every case for trial, because surgical defendants and their insurers settle the cases they believe a jury will hear.
Early in the case, New Jersey practice brings the parties to a Ferreira conference, where the court confirms the affidavit of merit is in order and the case is positioned to move. From there, depositions of the surgical team test the explanations the records suggest, and our experts and theirs confront the same count sheets, timelines, and operative notes. Most surgical error cases resolve before a verdict, but they resolve on the strength of the proof assembled, which is why the investigation cannot be an afterthought.
The Epstein Law Firm has represented New Jersey medical malpractice clients for decades from our Rochelle Park office. Michael J. Epstein was selected to the New Jersey Super Lawyers Top 100 list for 2026 and holds an AV Preeminent rating from Martindale-Hubbell, and TopVerdict has ranked the firm’s results at the top of New Jersey lists, including the Number 1 Medical Malpractice Settlement in the state in 2024 and a Top 10 New Jersey Personal Injury Settlement that year. Read the PR Newswire release on the firm’s Top 20 U.S. medical malpractice settlement recognition, and see the firm’s post on Michael Epstein’s 2026 Personal Injury Lawyer of the Year recognition. The firm’s medical malpractice work includes the informed-consent litigation in Murphy v. Implicito, and our attorneys have tried and settled surgical and hospital negligence cases across Bergen, Hudson, Essex, and Passaic counties.
Our attorneys have recovered substantial verdicts and settlements for clients across New Jersey, including:
Every case is different, and past results do not guarantee a similar outcome. What they do show is the level of preparation and persistence our firm brings to serious claims. Read more about our case results, or call (201) 231-7847 to talk about what your own claim may involve.
Client reviews describe the responsiveness and care our team aims to deliver in every case:
“Michael Epstein is a wonderful, smart, caring and intelligent attorney. He was always responsive, supportive and got me dismissed from a high stakes lawsuit. I highly recommend him and the firm.” — Leslie, Google review
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Read more from our clients on our Google reviews for the Rochelle Park office.
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Below are answers to common questions about surgical errors in New Jersey. This information is general and not legal advice — contact our office for guidance about your specific situation.
A surgical error is a preventable mistake before, during, or immediately after an operation that deviates from accepted standards of surgical care and harms the patient. The classic examples are wrong-site, wrong-procedure, and wrong-patient surgery, but retained sponges and instruments, avoidable organ and nerve injuries, and failures to monitor a patient after surgery are surgical errors too.
Not every bad outcome is an error. Surgery carries known risks that can occur even with proper care, which is why these cases are proven with expert testimony comparing what was done against what a reasonably careful surgeon would have done.
Sources: The Joint Commission – Universal Protocol; N.J.S.A. 2A:53A-27, affidavit of merit (Cornell Law Institute)
A retained foreign object is one of the clearest surgical errors: sponges, needles, and instruments are supposed to be counted before and after every procedure, and count discrepancies must be resolved before the patient leaves the operating room. Retained objects are typically discovered through pain, infection, or imaging months or years later and almost always require a second operation to remove.
New Jersey’s discovery rule matters enormously in these cases, because the limitations clock generally does not run until the patient knew or reasonably should have known the object was left behind.
Sources: N.J.S.A. 2A:14-2, two-year limitations period (Cornell Law Institute); The Joint Commission – Universal Protocol
Yes. A consent form acknowledges the known risks of a procedure performed competently; it is not a waiver of negligent care. A patient who consents to surgery on the left knee does not consent to surgery on the right one, and a patient who accepts the risk of infection does not accept an unsterile field or an uncounted sponge.
New Jersey informed-consent law separately requires disclosure of material risks and alternatives. If the risk that injured you was never disclosed, that can support its own claim, distinct from how the operation itself was performed.
Sources: N.J.S.A. 2A:53A-27, affidavit of merit (Cornell Law Institute); New Jersey Courts – Civil Division overview
In nearly every case, yes. New Jersey requires the plaintiff to serve an affidavit of merit from an appropriately licensed expert who can state that the care deviated from accepted standards. For surgical claims, that expert is typically a surgeon in the same specialty who has reviewed the operative report and records.
Our firm works with qualified surgical experts from the first review, because the expert’s analysis shapes both the affidavit and the litigation that follows.
The affidavit of merit is a sworn statement by a qualified expert that there is a reasonable probability the care fell outside accepted standards. Under N.J.S.A. 2A:53A-27, it must be served within 60 days after the defendant answers the complaint, with one possible 60-day extension, and failure to serve it can mean dismissal.
Because the clock runs from the answer, the expert review must begin long before the lawsuit is filed. Waiting to retain counsel compresses the most technical part of the case into its shortest window.
Generally two years under N.J.S.A. 2A:14-2, running from when the injury was discovered or reasonably should have been discovered. A patient who learns of a retained instrument three years after surgery usually measures the deadline from the discovery, not the operation.
Exceptions and tolling rules exist, including for minors, but they are technical. Because the expert review and affidavit of merit take months, the safe course is to have the records reviewed as soon as an error is suspected.
Sources: N.J.S.A. 2A:14-2, two-year limitations period (Cornell Law Institute); N.J.S.A. 2A:53A-27, affidavit of merit (Cornell Law Institute)
Often both. Surgeons may be hospital employees or independent practitioners with privileges, and the answer determines whether the hospital answers for their work directly, under agency principles, or for its own failures — credentialing, staffing, count protocols, and operating-room systems are the hospital’s own responsibilities.
Most surgical error cases name several defendants, and sorting out employment and agency relationships from the records is an early part of our investigation.
Sources: New Jersey Courts – Civil Division overview; N.J.S.A. 2A:53A-27, affidavit of merit (Cornell Law Institute)
No. Infections can occur despite proper sterile technique and appropriate antibiotics, and infection alone does not prove negligence. The claim strengthens when the infection traces to a deviation — a break in sterile protocol, a retained foreign object, prophylactic antibiotics given late or not at all, or warning signs after discharge that were documented and ignored.
Expert review of the operative and post-operative records is what separates an unfortunate complication from a compensable error.
Sources: Makary & Daniel, medical error study, The BMJ (2016); N.J.S.A. 2A:53A-27, affidavit of merit (Cornell Law Institute)
Compensatory damages cover the second surgeries and added medical care the error made necessary, lost income and diminished earning capacity, pain and suffering, and, in fatal cases, the family’s losses under New Jersey’s wrongful death and survival statutes. New Jersey does not cap compensatory damages in medical malpractice cases.
One caution: partial caps under New Jersey’s charitable immunity statute can affect claims against nonprofit hospitals, which is another reason the defendant analysis matters early.
Sources: N.J.S.A. 2A:14-2, two-year limitations period (Cornell Law Institute); New Jersey Courts – Civil Division overview
Nothing out of pocket. Consultations are free and confidential, and medical malpractice cases are handled on a contingency fee: the firm is paid a percentage of the recovery only if we win compensation for you, under the fee schedule New Jersey court rules set for these cases.
If we do not believe the records support a claim, we will tell you that plainly. Either way, you leave the review knowing where you stand and what your deadlines are.
Sources: New Jersey Courts – Civil Division overview; N.J.S.A. 2A:14-2, two-year limitations period (Cornell Law Institute)
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The Epstein Law Firm
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