By Mark Anderson. Last Updated 26th February 2021. Welcome to our guide on surgical error claims. Many different types of surgery entail the risk of medical complications as well as a period of painful recovery, even relatively minor and commonly performed surgeries. However, when you are undergoing an operation, you are entitled to know that you are in safe hands and to know that the doctors performing the surgery are well qualified, well prepared and are not going to make any mistakes.
Surgical mistakes leading to harm to the patient are rare, especially the most common and dangerous kind. However, if you have been the victim of surgical negligence, then one case is too many. You can receive compensation for the impact of surgical negligence you have suffered from. To try to claim this compensation, you are best advised to seek out legal advice and to work with a personal injury solicitor. These are the services that we provide; through us, you can find a solicitor who specialises in making surgical negligence claims and who can provide their services without burdening you with heavy legal fees. This guide should help you find out what you need to know about making surgical negligence claims through our solicitors. Note that this guide is just for medical negligence claims for surgical negligence, but our website also has a host of other pages for different types of medical negligence, such as Care home negligence. Dental negligence and deaths due to medical negligence.
Select A Section
- A Guide To Surgical Negligence Claims
- What Is Surgical Negligence?
- Surgical Negligence Statistics
- Potential Causes Of Surgical Negligence
- How Surgical Negligence Could Happen
- Types Of Surgical Negligence
- Negligent Cancer Surgery
- Negligent Keyhole Surgery
- Negligent General Surgery
- Surgical Negligence Claims Against The NHS
- A Surgeon Did Not Get My Consent Before An Operation, Could I Claim Compensation
- A Surgeon Left An Object Inside Me, Could I Claim Compensation?
- I Was Not Properly Anesthetized, Could I Claim Compensation?
- Surgical Negligence Injury Claims Calculator
- Special Damages Which May Be Awarded To Claimants
- No Win No Fee Surgical Negligence Claims
- How We Could Help The Victims Of Surgical Negligence
- Start Your Surgical Negligence Claim
- Essential Resources
There are few forms of surgery that don’t entail some degree of risk; however, in the majority of cases, this risk should only be very slight. In the rare event that an operation goes wrong, and it is the result of the negligence of the doctors performing the surgery, the patient who has been harmed can claim compensation.
Surgical negligence can have a serious impact on the patients’ health, especially when they are already dealing with another illness. The impact of surgical negligence can be life-threatening and life-changing. This guide will go through some of the common causes and effects of surgical negligence, then explain how and when you can claim compensation for it. The information on how you can claim compensation will include information on claiming from the NHS and information about how you can save yourself money by making a no win no fee claim.
At the end of this guide, we will provide you with the contact details for reaching our team of advisors, who can answer any further questions you might have or offer you guidance on what to do next if you decide that you do wish to start making a claim.
Going through surgery can be a physically and mentally trying experience at the best of times, even if the surgery is successful. There can be a long period of recovery in which you may have to deal with pain and soreness and not be able to work or do other normal activities. Surgical negligence is instances in which the surgery goes wrong due to procedure not being followed, mistakes being made or the quality of treatment you received being below the standards expected of all medical practitioners. The duty of care which all doctors and nurses have for you before, during and after your surgery means that surgical negligence, even when done by accident rather than on purpose, is never acceptable.
Surgical negligence can cause harm in a number of different ways. It can leave you with injuries to body parts, potentially causing long term or permanent disabilities and health problems, it can cause illnesses through infections, it can cause the recovery from your surgery to be more prolonged and painful than it should be and can require you to undergo further surgeries to rectify the issue.
Unfortunately, the number of surgical negligence cases are gradually on the rise in the UK. There are around 4.6 million admissions to British hospitals every year for surgeries; of these, around 300 result in “never events”. Never events are the most severe cases of medical negligence, causing the most serious effects and cannot happen without the most extreme forms of medical malpractice. Examples of never events can include the wrong procedure being carried out, such as the amputation of a healthy limb or the removal of a healthy organ or leaving instruments inside the patient’s body as they are being closed up. 300 is a small number compared to the number of surgeries that are carried out every year, but it is an alarming number when considering the seriousness of the negligence they entail.
Although there were 300 severe claim cases, the complete number of cases was far larger. According to an NHS report, there were a total of 11,682 fresh clinical claims and reported incidents recorded during 2019/20. In addition, 15,550 claims reached a resolution during the same time period. Of those, 71.5% were settled out of court, while 27.9% led to court proceedings and 0.6% ending up at a trial.
More common forms of surgical negligence are less severe, such as sewing up the incision improperly, causing avoidable scarring, or more minor cases of tissue damage. Cases like these are rarely life-threatening or life-changing but can still entitle you to compensation.
The most common reason for surgical negligence is simple human error. It takes years of training for a surgeon to become qualified for their job; the same goes for all the other doctors and nurses roles. But surgeons are only human, and they are fallible. Some of the ways their mistakes can lead to surgical negligence can include:
- Tiredness: Without rest, people become more prone to losing focus and making errors. Surgeons who are operating after a long shift can suffer this. This can be more of a risk in procedures that take a long time.
- Lack of planning: Surgeries require careful planning beforehand; if this hasn’t been done, then it increases the risk of a mistake occurring.
- Lack of communication: It is crucial that the team performing the operation communicate properly and clearly with each other. If communication breaks down during the surgery, then they can make mistakes.
- Lack of expertise: Surgeons attempting to perform operations which they are not qualified for can make mistakes.
- Carelessness: Simple carelessness can cause mistakes. Surgeons can make critical errors while performing routine operations which they have carried out a number of times before out of simple complacency. Any of these examples could lead to surgical error claims.
With all of the different types of complicated surgical operations, there is a multitude of unique ways that surgical negligence can occur. We couldn’t list all of the different ways that negligence in a surgical procedure can be caused, but here are just a few of the more common reasons.
- Misdiagnosis of the medical issue: If there is a misdiagnosis of the health issue the patient has in the first place, then the surgery could have been arranged when it was inappropriate. Surgery that is unnecessary and inappropriate can cause the patient further health problems on top of the issue that already existed.
- Incorrect application of anaesthesia: Anaesthesia is used to render the patient unconscious and unaware during surgery. There is no single dosage of anaesthetic that gets used in surgery; each patient will require a different amount to put them to sleep depending on their weight or age, and so on. The wrong amount can fail to keep the patient asleep for the duration of the surgery or cause them to remain unconscious for longer than they should be. Being given the wrong dose of anaesthetic can be grounds for a surgical negligence compensation claim in and of itself.
- Surgical complications: Some complications are an unavoidable risk. You should be made aware of any potential complication risks before being asked for your consent to undergo surgery. If you suffer a complication that you weren’t warned about before agreeing to have the surgery, then you can have grounds to claim surgery, especially if the surgery wasn’t the only option for dealing with your health problem.
- Negligent aftercare: After surgery has been performed, the patient will, in many cases, require a period of recuperation and monitoring in the hospital. If the nursing care that the patient receives at this time is negligent, then the patient can suffer harm to the health.
- Cosmetic surgery errors: It is becoming more common for people to undergo cosmetic surgery procedures. This means that plastic surgery negligence cases are becoming steadily more common. Although negligence in plastic surgery is less likely to be life-threatening than other kinds of surgery, its effects can still be a serious matter. For example, plastic surgery negligence claims can be made for facial disfigurement caused by negligence in a cosmetic surgery procedure.
Due to the vast array of different surgical procedures that can be performed and the number of different ways in which negligence can cause them to go wrong, there are far too many examples of the different kinds of injuries that can result to list all of them here. However, to help give you an idea, here are just some of them:
- Causing damage to nerves and arteries
- Causing damage to organs by accidentally slicing them
- Failing to notice damage to organs
- Causing hernias
- Causing an infection by not properly ensuring proper hygiene.
In the period of recuperation after surgery, the patients’ health needs to be monitored closely by doctors and nurses. Failing to spot the signs of ill-health caused by surgical negligence is also a form of surgical negligence, for example failing to spot the signs of organ failure caused by damage in the surgery or failing to spot signs of infection.
Sometimes surgery is required to address a case of cancer by removing the tumour. As with all types of surgery, there is a risk of complications, failure to treat the problem and the threat of medical negligence. If medical negligence occurs during an operation to remove a cancerous tumour, it can result in avoidable damage to the body part from which the tumour was taken; alternatively, the procedure could fail to remove the entire tumour, resulting in malignant tissue being left in the body. In certain forms of tumour removal operations, the patient can be left with disfigurements by surgical negligence; for example, if breast cancer tissue is removed improperly, the patient can be left with cosmetic disfigurements.
Keyhole surgery (Laparoscopy), also known as Minimally Invasive Surgery, is a form of surgery in which the surgeons reach the body part they are operating on by making a small incision and operating the surgical instruments through the aid of a very small camera. Injuries caused by negligence in Laparoscopic surgery can include damage to the bladder, the gall bladder, damage to nerves and damage to blood vessels. Infections can also occur as a result of a negligently performed keyhole surgery.
General surgery deals with any of the bodies soft tissues, meaning the internal organs in the abdomen, skin and muscle. Soft tissue injuries such as cutting and damaging organs, nerves, veins and arteries can ensure surgical negligence in general surgery. Hernias can also result for a number of different reasons from soft tissue surgery, such as cutting the inguinal or genitofemoral nerves.
Let’s now discuss surgical error claims against the NHS. Of course, it is perfectly possible to make surgery negligence claims against a private health firm that has treated you negligently, but most people in the UK receive their healthcare from the National Health Service. This section is information in relation to making claims for surgical negligence, which occurred under the NHS.
The NHS has special bodies and procedures in place for dealing with cases of medical negligence, surgical negligence included. You have the right to make an official complaint to the NHS if surgery has gone wrong; the NHS will perform an investigation into the incident to determine what went wrong and who is at fault. You also have the right to claim surgical negligence compensation from the NHS. The NHS has a dedicated department called NHS resolution for addressing medical negligence claims and awarding compensation. In most cases, you can begin your claim while the investigation is still ongoing. However, in some special circumstances, you may be told you have to wait until the investigation is concluded. You can find NHS resolution and more information about how it works here. You may also wish to consult the Citizens Advice Bureau.
Operating on a patient requires express, written, informed consent in all circumstances except for cases in which a patient taken to A&E requires lifesaving surgery and unresponsive patients, in which case the patients family can give their consent. Any surgical procedure performed without your consent except for the situations already mentioned can be grounds for a compensation claim. Surgeons must also not perform any procedure beyond that which you have granted your consent for unless an emergency arises during the procedure. Obtaining your informed consent requires informing you of any potential complications or other risks associated with the surgery you are being asked to undergo. If such complications arise without you having been warned of them beforehand, then you could be entitled to compensation.
Unless the surgery is intended to place an object inside your body (i.e. installing a pacemaker), then there is not any excuse for a surgeon to leave any objects inside your body. Even fairly small objects such as swabs and sponges can lead to infections and complications with the surgical wounds healing. Leaving objects behind in a patient’s body constitutes a blatant act of surgical malpractice and can be grounds for making a surgical negligence compensation claim.
You could claim compensation if you did not receive the proper amount of anaesthetic during your surgical procedure. The incorrect application of anaesthetic can have a number of different serious outcomes. One is the frightening prospect of the patient regaining awareness during the procedure and being conscious of the sensation of being operated on. This is a painful and deeply traumatic experience for any patient who faces it. Anaesthetic is also important for regulating the patients’ blood pressure during the surgical procedure; if it is not properly controlled by the anaesthetic, the increased blood pressure can lead to strokes or other forms of brain damage.
The compensation which you and your solicitor claim for is calculated based on the severity of the injury, the general rule applies that the more significant the injury is, the higher the compensation you are entitled to. Factored into this is the degree of physical pain and suffering caused by the injury, the amount of time it takes you to fully recover, whether or not you are left with any permanent disabilities or chronic pain, the psychological effects of the injury or the accident which caused it (such as PTSD) and whether or not you are left with disfigurements by the injury.
At this stage, it won’t be possible to calculate how much compensation your injury is worth. To do that, you would have to have discussed your circumstances in detail with a solicitor, be examined by a doctor and to have compiled a record of all financial expenses related to your injury; however, you can read through the table below to see the guidelines for compensation is valued for certain different types of injuries, which you may find useful for your surgical error claim.
|Laparotomy scar||If a laparotomy (key hole surgery) has been performed by found no evidence of injury or issue requiring surgery. Compensation is awarded for the scar.||£7,380-£8,110|
|Hernia (a) severe||Lasting pain and limitation of physical activity after repair.||£12,700-£22,680|
|Hernia (b) moderate||Hernia with risk of reccurance after repair.||£5,980-£8,550|
|Hernia (c) minor||Hernia with no lasting effects after repair.||£2,900-£6,790|
|Digestive system (i)||Severe damage causing lasting pain and discomfort.||£36,700-£58,100|
|Digestive system (iii)||Penetration stab wounds or laceration.||£5,630-£11,820|
|Bladder injury (b)||Complete loss of function and control||£120,040-£132,040|
|Bladder injury (c)||Severe impairment of function and control with lasting pain.||£54,600-£75,010|
|Bladder injury (d)||Near full recovery with some lasting impairment of function.||£19,980-£29,380|
The compensation you get for the injury and its direct effects on your health is known as general compensation; further compensation can also be awarded for the financial effects that having the injury has had on you. Make sure that when you have suffered an injury that you keep a note and receipts of any expenses you have to take on as a result of the injury that you wouldn’t have had to deal with if the injury hadn’t occurred. Things like:
- The costs of private medical treatment and care
- The costs of home adaption if you have become disabled
- The costs of any assistive equipment, i.e. Crutches, mobility scooters and Zimmer frames.
- The costs of physiotherapy relating to your recovery from your injuries
- The costs of medications that you require.
- Travel costs to and from any medical treatment, therapy or counselling sessions relating to your injury.
As well as the money you have had to pay in relation to dealing with your injury you can also be compensated for income that you have lost out on because of the injury. This means wages you have missed out on because you have had to stop working either temporarily or permanently because of the injury or money you have lost due to having to leave your job and take a lower-paid position elsewhere due to your injury.
No win no fee agreements are a simple and effective way to make your compensation claim while avoiding the potentially prohibitive costs of hiring a solicitor. The simple way of explaining a no win no fee claim is to say that it allows you to pay your fee to the solicitor using the compensation you receive if your claim works out in your favour. You won’t lose out on a large amount of the compensation by doing this as there is an upper limit of 25% to which your solicitor can be entitled. What this also means is that you won’t have to pay the costs for a claim which doesn’t end in your favour. If you have any concerns or if you would like further details, you can ask for free advice on the contact information at the bottom of this page.
Working with us and our solicitors offers a range of advantages. For starters, you don’t have to worry nearly as much about the financial risks of making a claim by claiming under a no win no fee agreement. We also offer our teams advisory services free of charge without expecting you to agree to make your claim through us beforehand. You can rest assured that if you work with our solicitors, you will be in safe and well-qualified hands; our solicitors have up to thirty years of experience working in law.
You may want to have a chat with a legal expert to get some advice before making a compensation claim. If so, you can speak to our experts, who will talk to you free of charge. The number to call is 0800 073 8801, you can ring at any time, and our team will be available to talk to you; alternatively, if you would rather receive a call, you can arrange one on this page. You can also email us directly at firstname.lastname@example.org. If you want to go straight onto arranging a no win no fee claim, you can use the same contact information.
How can you define a surgical error?
Simply put, this is a preventable mistake made by the doctor during surgery. Bear in mind that there is always a risk with surgery, and some surgeries may only have a small chance of bringing a patient back to full health. Hence why the patient signs a declaration form beforehand informing them of any risks. But if a surgical error proves to have been easily avoidable, the patient could still file a claim.
What is the most common surgical error claim scenario?
The most frequent situation is when there is an error with the anaesthetic. An anaesthesia error is not only very serious, but it even carries the risk of being deadly towards the victim. It tends to be the result of an oversight or simple lack of attention. But if the doctor administers an excessive amount of anaesthesia, it could reduce the patient’s oxygen levels, potentially causing brain damage and, in severe cases, death.
How should I react if a surgeon does make a mistake?
It’s imperative to gather evidence as quickly as possible while the situation is still fresh. And we suggest contacting a personal injury lawyer at the earliest possible stage in order to build your case. This is partly because you may still be experiencing the physical and mental consequences stemming from the surgical error, so time is of the essence.
Could I make a claim for a surgical error?
Assuming that the negligence of the medical professionals was the primary contributory factor in you suffering any damage from a surgical error, and you have evidence to prove this conclusively, then yes you could make a viable surgical error claim.
Article by Jack
Thank you for reading our guide on surgical error claims.