A child is not a small adult. That statement is the first principle taught in every pediatric surgery and pediatric anesthesiology training program, and it is the principle most often violated when surgical errors harm children. A child’s airway is shaped differently than an adult’s. A child’s organs are still developing. A child’s bones contain growth plates that, if damaged, can alter the trajectory of their physical development for life. A child’s metabolism processes drugs at different rates. A child’s body has a fraction of the blood volume and fluid reserves of an adult, which means even a modest surgical error can cascade into a life-threatening crisis in minutes rather than hours. When a surgeon, anesthesiologist, or surgical team fails to account for these differences, the consequences fall on a child who had no voice in the decisions being made about their body.
My name is Scott DeSalvo. For more than 27 years, I have represented injured people across the Chicago area. My path to law started when I was nine years old, watching my father, a Teamster truck driver, endure a catastrophic work injury and then spend 17 years navigating a legal system that was not designed to help him. That experience is why I fight for people who are harmed by institutions that should have protected them. If your child suffered a preventable surgical error, I want to hear what happened. Reach me directly at 312.500.4500 for a free consultation, any day, any hour. Hablamos Español. You owe nothing unless we win.
Every medical professional who operates on a child or administers anesthesia to a child is expected to understand that pediatric patients present fundamentally different challenges than adults. The standard of care in pediatric surgery is not merely the adult standard applied to a smaller body. It is a separate, specialized standard that reflects the reality of operating on a patient whose anatomy, physiology, and drug metabolism are categorically different from what most surgeons encounter in adult practice. When that specialized standard is not met, the result is medical malpractice.
The differences begin with the airway. An infant’s airway is not a miniature version of an adult airway. It is funnel-shaped rather than cylindrical. The narrowest point is at the cricoid cartilage, not at the vocal cords as in adults. The larynx sits higher in the neck, the tongue is proportionally larger, and the prominent occiput causes the neck to flex when the child lies flat, predisposing to obstruction. Airway and respiratory complications remain the most common causes of morbidity during general anesthesia in children. Even one millimeter of swelling in an infant’s trachea reduces the airway opening by a dramatically greater percentage than the same swelling would in an adult, because resistance to airflow increases by the fourth power of the reduction in radius. A small error in endotracheal tube selection, positioning, or cuff pressure can rapidly escalate from a manageable problem to brain damage or death in a pediatric patient.
The cardiovascular system of a child is equally unforgiving. An infant’s heart has a relatively fixed stroke volume, meaning cardiac output depends almost entirely on heart rate. Bradycardia from an anesthetic overdose or a vagal response during surgery can cause cardiovascular collapse far more rapidly in a child than in an adult. Blood volume in a neonate is approximately 80 milliliters per kilogram, which means a 3-kilogram newborn has a total blood volume of roughly 240 milliliters—less than a cup. Surgical blood loss that would barely register in an adult can represent a life-threatening hemorrhage in an infant.
Temperature regulation presents another critical vulnerability. Children, and neonates in particular, have a high surface-area-to-body-mass ratio and limited ability to generate heat. Hypothermia during surgery can cause coagulation problems, cardiac arrhythmias, delayed drug metabolism, and impaired wound healing. The surgical team has an obligation to monitor and maintain body temperature throughout any pediatric procedure, and failure to do so is a deviation from the standard of care.
Nearly every medication used in pediatric surgery, from anesthetics to antibiotics to pain medications, must be dosed based on the child’s weight in kilograms. There is no standard adult dose that can simply be reduced. Each drug has a pediatric-specific dosing calculation, and the margin for error is razor-thin. A meta-analysis of global data estimated that a medication error occurs in approximately 1 out of every 1,250 pediatric anesthetic administrations. The harm caused by medication errors has been reported to be as high as three times greater in pediatric patients than in adults, with the highest rate of adverse drug events occurring in neonates.
Medication errors in pediatric surgery take several forms. Miscalculation of weight-based dosing is the most common, particularly when a child’s weight is estimated rather than measured or when a decimal point is misplaced. Drug overdoses can suppress respiration, cause cardiovascular depression, or trigger malignant hyperthermia. Underdosing can result in a child experiencing awareness during surgery or inadequate pain control. Administration of the wrong drug entirely, sometimes due to look-alike vial labeling or failure to double-check, accounts for another significant category. And failure to account for a child’s immature liver and kidney function, which affect how drugs are metabolized and cleared, can cause toxicity at doses that would be safe in an older child or adult.
Wrong-site surgery, the nightmare scenario in which a surgeon operates on the wrong side of the body, the wrong limb, or the wrong anatomical structure, occurs in approximately 1 per 100,000 surgical procedures nationally. In pediatric patients, wrong-site surgery carries additional risk factors. Young children cannot participate in the pre-surgical verification process the way adults can. A frightened, sedated, or nonverbal child cannot confirm which ear, which eye, or which leg is the correct surgical site. Studies have documented cases where a child received midazolam for anxiety and slept through the verification exam, or where a language barrier prevented effective communication with the parents, resulting in surgery on the wrong side. The Joint Commission’s Universal Protocol requires site marking, a pre-procedure verification process, and a time-out before every surgery, but these safeguards fail when surgical teams do not adapt them to the specific challenges of pediatric patients.
Pediatric anesthesia errors represent one of the most dangerous categories of surgical mistakes because of the narrow margin between a therapeutic dose and a harmful one in children. Critical incidents occur in approximately 0.55 percent of pediatric anesthesia cases, with human factors accounting for 61 percent of all critical incidents. These errors include incorrect drug dosing, failure to recognize and respond to airway obstruction, failure to properly monitor the child’s vital signs, delayed recognition of cardiac arrest, and communication failures between the anesthesiologist and the surgical team. Cardiac arrest accounted for 8.5 percent of all critical anesthesia events in one major pediatric study. Over half of critical incidents in pediatric anesthesia have been classified as preventable.
Leaving a surgical instrument, sponge, or other foreign body inside a patient after surgery is classified as a never event, meaning it should never happen under any circumstances. Nationally, retained surgical items occur approximately 39 times per week. In pediatric patients, a retained foreign body can cause infection, bowel obstruction, perforation, chronic pain, and the need for additional surgery to remove the item. The smaller operative field in pediatric surgery can actually make it more difficult to track instruments and sponges, and failure to perform a correct surgical count before closing is a clear deviation from the standard of care.
Children’s bones contain growth plates, which are areas of developing cartilage near the ends of long bones where new bone growth occurs. These growth plates are softer and more vulnerable to injury than mature bone. A surgical error that damages a growth plate can cause the bone to stop growing, to grow unevenly, or to develop an angular deformity. The consequences may not become apparent until the child grows older and the affected limb or digit becomes visibly shorter or misaligned. Nerve damage during pediatric surgery can impair motor function, sensation, or both, and because children’s nervous systems are still developing, the functional consequences of nerve injury may differ significantly from the same injury in an adult.
Children who develop post-surgical infections face heightened risk because their immune systems are not fully mature, particularly in neonates and infants. A surgical site infection in a child can progress rapidly to sepsis, which remains a leading cause of mortality in pediatric intensive care units. Failure to maintain sterile technique, failure to administer prophylactic antibiotics when indicated, or failure to recognize early signs of infection represents a departure from the standard of care.
Many pediatric surgeries involve the correction of congenital anomalies, conditions a child is born with that require surgical intervention. These include heart defects, tracheoesophageal fistula, intestinal atresia, and neural tube defects, among many others. These procedures are often performed on neonates in the first days or weeks of life, when the patient is at maximum physiological vulnerability. Errors during congenital anomaly repair can result in incomplete correction, damage to adjacent structures, or the need for repeated surgeries that compound the child’s risk and suffering.
Research into pediatric surgical errors has consistently found that error rates increase with the complexity of the procedure. A systematic scoping review covering more than 5.4 million pediatric patients and nearly 9,000 documented errors found that increased surgical complexity was a major theme correlated with higher error rates. This is significant because the children who undergo the most complex surgeries, those with congenital heart defects, those requiring organ transplantation, and those with multi-system anomalies, are precisely the patients who are least able to tolerate an error.
The research also identified that more than half of adverse events in surgery are caused by medical errors. The gap between an error and an adverse outcome is narrower in pediatric surgery than in adult surgery, because children have less physiological reserve. An adult patient may absorb a moderate surgical complication and recover. A neonate with the same complication may not survive.
When a surgical error harms a child, the consequences are measured not in years but in decades. A two-year-old who suffers brain damage from an anesthesia error will require care for the next 70 or 80 years. A five-year-old whose growth plate is destroyed will live with the resulting limb deformity through adolescence and into adulthood. A newborn who suffers a bowel injury during congenital anomaly repair may face nutritional challenges, repeated hospitalizations, and growth delays that cascade through their entire childhood. The legal concept of damages in pediatric surgical error cases must account for this reality.
Illinois law allows recovery for the full spectrum of damages that a pediatric surgical error causes. Economic damages include all past and future medical expenses, which in severe cases can reach millions of dollars when projected over a lifetime. They include future surgical procedures to correct or mitigate the original error, ongoing therapy and rehabilitation, assistive devices and home modifications, and lost future earning capacity if the child’s injuries prevent them from working at full capacity as an adult. Non-economic damages include the child’s pain and suffering, disfigurement, emotional distress, and loss of normal life. Illinois does not cap non-economic damages, which means a jury may award whatever amount it determines is fair compensation for the child’s suffering.
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Medical malpractice cases in Illinois require proof of four elements: that the healthcare provider owed a duty of care to the patient, that the provider breached the applicable standard of care, that the breach caused the patient’s injury, and that the patient suffered actual damages. In pediatric surgical error cases, the standard of care is measured against what a reasonably competent pediatric surgeon or pediatric anesthesiologist would have done under the same circumstances. The fact that operating on children demands specialized knowledge and training means the standard is specific to pediatric practice.
Illinois law requires that every medical malpractice complaint be accompanied by an affidavit of merit from a qualified physician who has reviewed the medical records and concluded that there is a reasonable and meritorious basis for the claim. This requirement exists to screen out frivolous lawsuits, but it also means that an experienced attorney must assemble the right medical experts early in the process. In pediatric surgical error cases, the expert must be a physician with specific expertise in pediatric surgery, pediatric anesthesiology, or the relevant pediatric subspecialty.
The two-year statute of limitations for medical malpractice in Illinois is tolled for minors, meaning the clock does not begin running until the child turns 18. A child injured by a surgical error has until their 20th birthday to file a lawsuit. However, there is an absolute eight-year statute of repose, meaning no medical malpractice action may be brought more than eight years after the date of the negligent act, regardless of the patient’s age. This means that in practical terms, parents should not wait to pursue a claim, even though the tolling provision for minors provides additional time.
Not every bad outcome is the result of negligence. Surgery carries inherent risks, and some complications occur even when the surgical team performs perfectly. The distinction is whether the complication resulted from a deviation from the accepted standard of care. An experienced medical malpractice attorney will obtain your child’s complete surgical records, operative notes, anesthesia logs, and nursing records and have them reviewed by qualified pediatric medical experts who can determine whether the standard of care was met.
It can matter significantly. Hospitals that regularly perform pediatric surgery have specialized equipment sized for children, pediatric-trained anesthesiologists, pediatric nursing staff, and pediatric intensive care units. When a child undergoes surgery at a facility that primarily serves adults and lacks these specialized resources, the risk of error increases. The question in a malpractice case is whether the facility and providers met the standard of care applicable to pediatric patients, regardless of where the surgery took place.
If a general surgeon undertakes a procedure on a child, that surgeon is held to the standard of care that a reasonably competent physician would exercise when treating a pediatric patient. The fact that the surgeon was not a pediatric specialist does not lower the standard. If anything, a general surgeon who operates on a child without the specialized training or resources to do so safely may be held to have breached the standard of care by accepting the case in the first place.
The general medical malpractice statute of limitations in Illinois is two years from the date the injury was discovered or should have been discovered. For children, the statute is tolled until the child turns 18, giving them until age 20 to file. However, an eight-year statute of repose applies, meaning no case can be filed more than eight years after the negligent act regardless of the child’s age at the time. Because of these interacting deadlines, consulting an attorney promptly is important.
Known risks are risks that can occur even with proper surgical technique and are typically disclosed in the informed consent process. However, a complication being a known risk does not mean it cannot also be caused by negligence. If the surgical team’s actions or omissions caused or contributed to the complication, the fact that the complication was listed on a consent form does not shield them from liability. Informed consent does not constitute consent to negligent care.
The value depends on the severity of the injury, the extent of future medical needs, the impact on the child’s development and quality of life, and the projected lifetime cost of care. Severe cases involving brain injury, permanent disability, or the need for lifelong medical support can result in verdicts and settlements in the millions of dollars. Illinois places no cap on non-economic damages, which means juries have discretion to fully compensate children for their pain, suffering, and loss of normal life.
In most cases, no. Pediatric surgical error cases are typically resolved through expert testimony, medical records, and the testimony of the parents, treating physicians, and medical experts. Courts are protective of child witnesses and will not require a child to testify unless absolutely necessary. Many of these cases settle before trial.
My firm handles pediatric surgical error cases on a contingency basis. Your family pays no fees, no retainer, and no costs unless we obtain a recovery. All expenses for investigation, expert review, and litigation are advanced by the firm and repaid only from the proceeds of a successful resolution.
Pediatric surgical error cases sit at the intersection of complex medicine and high-stakes law. They require an attorney who can read operative reports and anesthesia logs, who understands the specific physiological vulnerabilities of pediatric patients, and who can work with the right pediatric medical experts to build a case that demonstrates exactly how the standard of care was violated and exactly what that violation cost your child. They also require an attorney who is prepared to take the case to trial if the hospital and its insurers refuse to offer fair compensation.
Over 27 years of practice, I have gone to trial on a lot of cases. My training at Gerry Spence’s Trial Lawyer’s College and The Edge program taught me that every case is ultimately about telling one person’s story so powerfully that the people in the jury box feel the weight of what happened. When the person harmed is a child, that story matters more than ever.
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Scott DeSalvo founded DeSalvo Law to help injured people throughout Chicago and surrounding suburbs. Licensed to practice law in Illinois since 1998, IARDC #6244452, Scott has represented over 3,000 clients in personal injury, workers compensation, and accident cases.
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