Surgical Error Claims

All surgery poses risks to patients, which they should fully understand before agreeing to an operation. Surgeons and all medical staff have a legal obligation to provide treatment in a safe and regulated manner, referred to as their duty of care. This duty makes patients feel reassured and confident that a competent and reliable team will conduct their surgery.

As in all occupations, medical professionals and surgeons do make occasional mistakes. Unfortunately, mistakes made in surgery are not readily rectified or overlooked. Those who suffer from a surgical error are entitled to compensation for any pain and suffering caused by this mistake.

To find out if you could make a surgical negligence claim, call 0800 470 0474 today to speak to a solicitor specialising in medical negligence cases. Or you can use our online claim form to request a call back.

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Table of Contents

• What counts as surgery negligence?
• Why do surgical mistakes happen?
• How can surgical errors be prevented?
• Can I make a surgical negligence claim?
• What proof do I need to make a claim for surgical negligence?
• Examples of surgery negligence claims
• Can I make a surgery claim against the NHS?
• Can I claim if my negligent surgery happened abroad?
• Is there a time limit to start a surgery compensation claim?
• How long will my surgical error claim take?
• How much will I receive for a surgical negligence compensation claim?
• Can I claim compensation for a loved one?
•  Will my solicitor offer me a No Win No Fee service?
• Why should I use a medical negligence solicitor to process my claim?

What counts as surgery negligence?

Surgical negligence refers to any avoidable physical or psychological harm caused to a patient by a surgeon or surgical team’s wrongdoing. Examples of surgical errors include:

• Unexpected scarring from surgery
• Surgery performed on the wrong part of the body
• Burn injuries caused as a result of the negligent use of equipment
• Poor stitching following an operation that leads to infection or scarring
• Misplaced tubes for feeding/breathing and draining
• Wrong surgery performed
• Organ perforation during keyhole surgery
• Incorrect surgery performed for implants or prosthesis
• Damaging surrounding tissues, nerves or organs
• Leaving surgical instruments or foreign objects inside the patient’s body
• Performing unnecessary surgery
• Administering too much or too little anaesthesia
• Failure to monitor the patient’s vital signs during the surgery
• Failure to recognise or address complications
• Not obtaining informed consent from the patient

You may be entitled to compensation if you or a loved one has suffered due to any of these or other types of negligent surgery.

Why do surgical mistakes happen?

Surgical errors can occur for a variety of reasons, and they are typically the result of a combination of factors. Some common factors that contribute to medical negligence include:

• Communication issues. When doctors and medical staff do not talk well with each other, they can get things wrong. That might include misunderstanding the patient’s medical history, the surgical procedure to perform, or the instruments and equipment needed.
• Fatigue. Surgeons and their teams work long hours. This can impair their judgment, concentration, and motor skills, leading to mistakes.
• Lack of training. Insufficient training and experience can make doctors and nurses more likely to make a surgical mistake.
• Lack of preparation. Before surgery, it is essential to plan and get everything ready. If this is not done well, it can lead to errors. For example, the staff may have failed to check the patient’s history or be ready for possible complications.
• Problems with the equipment. Malfunctioning or improperly maintained surgical equipment and instruments can contribute to errors during surgery.
• Distractions in the operating room. Things like phones ringing or people talking loudly can distract the surgeon. When a surgeon’s attention is diverted, they might make mistakes.
• Emergencies. In cases where a patient requires urgent surgery, there may not be enough time for thorough planning, increasing the risk of errors.
• Not following safety rules. There are rules and checklists to make sure everything goes smoothly in surgery. Failure to follow the established protocols can be considered medical negligence.

Like everyone, surgeons and other medical staff can make mistakes. It could be because they weren’t paying attention, got distracted, or forgot something important. However, if they have failed to offer a reasonable standard of care and caused you an injury, you may be able to claim compensation.

How can surgical errors be prevented?

To avoid mistakes during surgery and a medical negligence claim, doctors and the staff should take the following steps:

• Practice effective communication and confirm the patient’s identity and the procedure to be performed;
• Address any concerns or questions about the surgery;
• Make sure that all the staff has the necessary training and experience to do the surgery;
• Thoroughly assess the patient’s medical history before the surgery to prevent complications;
• Inspect the surgical equipment and instruments to ensure they are properly sterilised and function correctly;
• Strictly follow the established safety protocols and guidelines;
• Involve the patient and encourage them to ask questions, clarify doubts, and provide relevant medical history.

If you have suffered an injury because your doctor has failed to follow these steps to ensure your safety, you could claim surgical negligence compensation.

Can I make a surgical negligence claim?

Mistakes during surgery are typical examples of clinical negligence for which patients can claim and obtain compensation. If a surgeon or other medical member of staff fails to uphold their duty of care to you and this results in further injury, illness or loss, you may be eligible to claim for surgical negligence.

You could claim whether you have been the victim of poor medical care or mistakes made before, during or after surgery. You could pursue a case for both physical and psychological damage caused by medical errors as long as you can prove the following:

• Duty of care. All medical professionals owe patients an obligation to provide treatment that meets a reasonable standard. This duty is assumed when you seek medical care.
• Breach of duty. This breach can involve an act or a failure to act according to the accepted practices in their field. For example, your doctor performed surgery on the wrong body part.
• Causation. This step involves showing that the breach of duty was the direct cause of your injury or harm. Your solicitor will consult with experts in the field to prove surgical negligence.
• Damages. These refer to the harm and losses you suffered as a result of surgical negligence. These can include pain and suffering, emotional distress, medical expenses, loss of income, and other related costs.

The solicitors we partner with have worked on many cases where patients have not received adequate or acceptable care during surgery and have suffered further complications. They are highly experienced in achieving the highest amount of compensation for clients in various circumstances.

To find out if you are able to make a surgery compensation claim, do not hesitate to call 0800 470 0474 for a free case assessment.

What proof do I need to make a claim for surgical negligence?

To start a negligent surgery claim, you need as much evidence as possible to prove a breach of duty, causation and damages. Based on your circumstances, you could use supporting proof such as:

• Your medical records
• If applicable, photographs of your injuries and any imaging tests like X-rays or MRIs taken before and after the surgery
• Doctor’s notes and medical reports from experts in the same field
• Any correspondence between you and the doctor and a copy of the consent form
• Copies of any complaint letters to the hospital and the answers you received
• Witness statements
• Your notes about how the surgical negligence has affected your life
• Financial documents that support your losses and expenses

Your medical negligence lawyer will help you gather everything you need to secure the compensation you deserve.

Examples of surgery negligence claims

Surgical error claims vary depending on the affected body part. Some surgical negligence cases are more severe, while others result in minor injuries. The following procedures are some examples for which you could claim surgical error compensation, regardless of the damage you suffered:

Cosmetic surgery

Cosmetic surgery has increased in popularity in the UK, with 31,057 procedures in 2022, but many people are unsatisfied with the results. Examples of negligence include nerve damage, excessive scarring and infections.

Laser eye surgery

Errors during procedures like LASIK or cataract surgery can lead to vision problems. Damage to the retina during surgery can lead to vision loss, which can be devastating.

Knee replacement surgery

Faulty or poorly implanted knee prostheses can cause mobility issues and the need for further surgery. Negligence during surgery can also lead to infections, nerve damage, blood clots and fractures.

Hernia surgery

Negligence during hernia surgery can lead to various adverse outcomes for patients. These include bowel injuries, persistent pain, infections and mesh complications. If the surgeon fails to repair it correctly, the hernia may return, needing further surgery.

Hip replacement surgery

Negligence in hip replacement cases may result in infections, mobility issues, nerve damage and implant failure. There is also a risk of anaesthesia errors and operating on the wrong hip.

Tumour removal

Surgery compensation after tumour removal may result from damage to nearby organs or tissue, infections, brain injuries or even death. If the surgeon fails to remove the entire tumour, it may continue to grow, potentially leading to a recurrence of the condition and the need for additional surgeries or treatments.

Dental surgery

Errors during dental procedures may result in nerve damage, infections, and damage to adjacent teeth. Your doctor may also remove the wrong tooth or cause excessive bleeding.

If you suffered an avoidable injury due to any type of surgical procedure, you may be entitled to receive compensation for your pain and suffering.

Can I make a surgery claim against the NHS?

If you have suffered any avoidable harm due to surgical negligence, you will likely be eligible to bring a claim against the NHS hospital concerned. If your claim is successful, your surgery compensation will be paid by NHS Resolution. This is an arm’s length body of the Department of Health and Social Care that handles all claims against the National Health Service.

NHS Resolution is funded by the premiums paid yearly by each NHS Trust. Thus, the compensation you may receive will not affect the resources assigned for patient care and treatment. Furthermore, your claim can highlight shortcomings in the medical care you received and help make better changes to prevent future similar errors.

You could also start a surgical negligence claim if you suffered an injury in a private hospital. According to the General Medical Council, all doctors working in private healthcare must hold insurance to cover any potential claims from patients.

Can I claim if my negligent surgery happened abroad?

You could still make a compensation claim if you suffered from medical negligence abroad. Many people seek treatment abroad due to the reduced costs, especially for cosmetic and dental procedures. However, when medical errors occur abroad, the claims process may be more complex and take more time. The claimant may face more barriers, such as:

• It can be more challenging to gather evidence when the surgery occurs abroad
• You may need additional proof, such as travel documents
• Your solicitor may need help from translators
• Different laws and time limits may apply in a foreign country

Based on the details of your case, you might not be able to claim in the UK. For example, if your surgery took place in a non-EU country, you may have to claim directly abroad. That can sometimes be beneficial and result in a better surgical compensation award, but it will also bring additional challenges to the claims process.

Is there a time limit to start a surgery compensation claim?

If you suffered from medical negligence, you have three years to start your claim and get the compensation you deserve. This time limit is set by the Limitation Act 1980 and starts from either:

• The date of the operation
• The date of knowledge, if you were diagnosed with a condition or injury later on due to your surgery

Although three years may seem like a long time, we advise you to start your claim as soon as possible. That will help your solicitor gather the best evidence and get you the compensation you deserve.

There are some exceptions to this limitation time. For example:

• You could claim on behalf of a child anytime before their 18th birthday. Afterwards, they will have three years, until their 21st birthday, to make a surgery claim themselves.
• There is no time limit if the claimant does not possess the mental capacity to conduct legal proceedings. That could be due to surgical negligence or a pre-existing condition like Down syndrome. In this case, a litigation friend could claim for them.
• If you suffered as a result of medical negligence abroad, the time limit to claim may be shorter than three years.
• If you lost a loved one due to surgical negligence, you have three years to claim from the date of death.

To find out more about what time limit may apply to your case, please get in touch by requesting a call back or calling free on 0800 470 0474. The expert medical negligence solicitors we work with will be happy to assess your case and answer any questions you may have.

How long will my surgical error claim take?

The amount of time it takes to process your claim depends on the individual specifics of your case. To make a successful surgical negligence claim, your solicitor must prove liability and the severity of your symptoms. To do this, they will gather evidence to support your claim. The time it takes to do this will impact your case’s completion time.

Your solicitor will work hard to complete your case as quickly as possible without compromising how much compensation you may receive. To do this, they will seek your support in obtaining documents to show how much the negligence has impacted your life.

Other factors that may impact how long your claim might take include:

• The nature of your harm, as it takes longer to assess more severe injuries
• Whether the other side admits liability for your pain and suffering
• How long it may take for you to recover, to know the full extent of any long-term or permanent damage
• The estimated value of your claim
• How long it takes to negotiate a settlement
• Whether you have to go to court

The medical negligence team of solicitors we partner with will work hard to settle your case as soon as possible. They may also secure interim payments for your care costs before the claim resolves, but only if the defendant admits liability or you have irrefutable proof against them.

How much will I receive for a surgical negligence compensation claim?

The final settlement amount you may receive will vary depending on the particulars of your case. Your solicitor will be responsible for proving the severity of your condition and the defendant’s liability level. The more severe your symptoms are and the more significant their negative impact on your life, the larger the compensation you may be able to secure.

As well as receiving compensation for the pain, suffering and loss of amenity caused by the error (general damages), you can also seek damages for the following (special damages):

• Loss of earnings if you have had to take time off work to recover from your injuries
• Loss of future wages if your injury means you must remain off work for an extended period
• The cost of any private medical treatments required, such as physiotherapy
• The cost of transport to and from relevant hospital or doctor appointments
• Changes to your home and vehicle
• Mobility aids and other supportive equipment you may need

According to the Judicial College guidelines, you could receive the following compensation figures:

•  £2,000 to £91,000 for scarring, depending on severity, the affected body part and the claimant’s age
•  £28,880 to £42,110 for loss of a kidney
• £45,840 to £55,000 for loss of sight in one eye
• £60,000 to £100,000 for injury to internal organs
• £107,810 to £158,970 for surgical negligence leading to infertility in women
• £205,580 to £266,740 for paraplegia
• £205,580 to £264,650 for severe brain injuries with substantial dependence on others
• Between £12,000 and £300,000 in wrongful death cases

Personal injury solicitors are highly experienced in this field and can offer a realistic estimate of the likely figure you could be awarded. On your initial consultation, which is free of charge, a legal adviser will assess your details and provide a guideline on how much compensation you can expect to receive. You can also use our compensation calculator to see example compensation amounts for various types of injuries.

Can I claim compensation for a loved one?

If a loved one suffered from medical negligence and cannot make a claim, you could take action for them. That is typically the case if the injured person is:

• A child under 18
• An adult who lacks mental capacity

To claim on behalf of someone else, you must apply to the court to name you as their litigation friend. This process is usually straightforward, and your lawyer will help you fill in and file all necessary documents. Before appointing you, the court will verify that:

• You can make fair and competent decisions about the case
• You have no conflict of interest with the claimant

You will have several responsibilities as a litigation friend, including:

• Make decisions about the claim
• Instruct solicitors and take legal advice
• Make sure the claimant attends all medical appointments
• Pay any fees requested by the court
• Consider any settlement offers from the other side

If you secure compensation for a child, the judge must approve the settlement during an Infant Approval Hearing. Based on the available evidence, they will decide if the amount received is fair. The funds will typically be held in a court bank account and released to the child on their 18th birthday. You can apply for early release of some of the payment if it is in the child’s best interests.

You can also claim compensation if you lost a loved one due to surgical negligence and were depending on their income. Under the Fatal Accidents Act 1976, you can claim for financial and loss of service dependency, as well as funeral expenses. You may also be entitled to a bereavement award of £15,120 for the grief caused by their death.

 Will my solicitor offer me a No Win No Fee service?

If you have a valid claim for compensation, the personal injury lawyers we work with will offer you a 100% no win no fee* service. What this means is that you do not have to pay any upfront legal fees, and you only pay anything to your solicitor if they win compensation.

If you win, they will receive a success fee of up to 25% of your settlement. You will agree upon the exact success fee percentage before starting legal proceedings. There will be no hidden charges or any other payments you should worry about.

You will also have After the Event (ATE) insurance included in your claim as part of the no win no fee service. This type of legal expenses insurance covers all the legal costs of litigation and your disbursements if your claim fails, such as:

• Costs of printing and copying
• Medical reports
• Expert witness fees
• Travel expenses
• Barrister fees if the case goes to court
• Court fees
• The defendant’s expenses and legal representation

You only have to pay for the cost of the ATE premium if and after you receive compensation. Otherwise, you do not have to pay anybody a single penny.

Why should I use a medical negligence solicitor to process my claim?

Medical negligence lawyers have years of experience helping people make surgical negligence claims. Further benefits of using our services include:

• A free, no-obligation initial consultation
• No win no fee service
• Extensive knowledge and experience in clinical negligence claims
• Local solicitors available in locations throughout the UK
• They will know exactly how much your claim is worth and negotiate the highest compensation possible
• Reduced stress, as they will handle all communication on your behalf
• A free independent medical review to assess your needs

To arrange a free consultation with a friendly legal adviser, call 0800 470 0474 today or enter your details into our contact form to request a call back.