If you suffer from a severe health condition and your healthcare provider exhausted all non-surgical treatments available, your remaining option might be to undergo surgery. This might be worrying and distressful, seeing as the outcome is rarely entirely predictable.
According to the Royal College of Surgeons of England, in 2013/2014, there were 4.7 million surgical admissions in England, a 27% increase from 2003/2004. Typical surgical procedures include hernia repairs, hip and knee replacement, gall bladder removal and tonsillectomies. Coronary interventions and correcting spinal injuries are often the last resort for treating patients.
The surgeons and medical staff are usually highly trained and skilful, and most patients undergo surgery without any significant problems. However, complications can occur and sometimes are due to negligent mistakes.
Common surgical negligence mistakes include performing a wrong-site surgery, unnecessary surgery, failed or incorrect surgical procedures, surgical delays and retained foreign objects. If you or a loved one went through pain and suffering due to an avoidable mistake, you might be entitled to bring a surgical negligence claim.
Can I make a surgical negligence claim?
A brief and free of charge conversation with a legal adviser can let you know right away if you are eligible to make a surgical error claim. However, it should be possible to claim if:
- You suffered or became aware of a surgical error in the last three years
- The care you received was below the medical standard accepted in the field
- The substandard care caused you an avoidable injury
Not every surgery complication or mistake can lead to a surgical negligence claim. If your illness aggravated or you suffered post-surgical complications, although your surgeon exercised a reasonable standard of care, it is unlikely you could ask for compensation.
Your solicitor will need to show that your healthcare provider was negligent by proving:
Breach of duty
You must be able to prove the defendant did not exercise a reasonable standard of care, skill and knowledge during your surgical treatment. This involves showing they failed to act as a competent professional with the same level of training would in the same circumstances.
Usually, expert testimony from medicolegal experts or other professionals in the same medical field is needed to prove breach of duty. The National Institute for Health and Care Excellence (NICE) offers extensive guidelines as objective standards for duty of care.
Before any surgery that is not an emergency, your doctor must communicate to you all the risks and complications that might arise and will need your informed consent to proceed. You cannot claim surgical negligence compensation for any inevitable pain or suffering that is an unavoidable consequence of the surgery.
To have a valid claim, you need to prove that you suffered an avoidable and unnecessary injury and that it was due to negligent care.
For a successful claim, you will need evidence of any physical, psychological and financial damage you suffered from surgical negligence.
What are the most common types of surgical errors?
All surgeries involve certain risks, of which you should be made fully aware before your procedure. Advances in medical science and patient safety measures led to continuous improvements in the surgical field, but mistakes can still occasionally occur.
Medical errors commonly occur due to:
- Lack of proper training
- Insufficient staffing
- Operating under the influence of drugs or alcohol
- Lack of communication between staff members
- Inadequate preoperative planning
There is a broad range of mistakes that a surgeon or another medical staff might commit during surgery, including:
- Unnecessary surgery – some surgical procedures can make the difference between life and death, but incorrect or misdiagnoses can lead to unnecessary and irreversible surgeries that might have severe consequences on your health.
- Wrong-site surgery – lack of proper care and attention can lead to amputations of the wrong side of the body or the removal of healthy tissue, with catastrophic consequences for the patient.
- Receiving incompatible or infected blood transfusions.
- Performing the wrong procedure during surgery – the patient will not only have to recover for the incorrect surgery but will still need further surgery for their underlying condition.
- Correct surgical procedures performed on the wrong patient – patient misidentification due to a mix up of medical records is not a common mistake but can have life-threatening consequences.
- Unintended damage to nerves, arteries or internal organs.
- Anaesthetic mistakes include:
- Damage to the nerves or spinal cord during administration can result in severe pain and disability.
- Anaesthetic awareness, if the patient remains conscious during the surgical procedure but is unable to move or speak, which can lead to severe psychological trauma.
- Anaesthesia overdose can have severe side effects such as mental and physical impairment, dementia, unconsciousness, brain injuries and even death.
- Foreign objects left in the body, which can lead to septic shock or puncture damage to internal organs and will require further surgery to remove the object.
- Acquiring hospital infections due to poor hygiene and safety measures.
- Failure to obtain the patient’s informed consent.
- Failure to monitor the patient’s vital signs during surgery.
- Delayed surgery, which may lead to the irreversible worsening of a condition.
- Scarring negligence due to excessive damage to the skin during surgery or improper post-operative care.
This list is not exhaustive; if you or a family member went through unnecessary pain and suffering due to a surgical error, you might be entitled to surgical negligence compensation. To find out if you may have a valid claim, call 0800 678 1410 for a free consultation with a legal adviser.
What should I do if I have suffered an injury or illness due to surgical negligence?
If you believe you suffered an injury or your condition worsened due to surgical negligence, you should contact an experienced solicitor. They will let you know if you are eligible for compensation and guide you through all the steps of a surgical error claim.
It is essential you seek medical advice as soon as you suspect something went wrong during your surgery. Some of your side effects might be completely normal and could resolve shortly. If you endured unnecessary and avoidable harm, a healthcare professional can tell you how your problem could be rectified.
Treatment might require further surgery, medication and rehabilitation. Unfortunately, some surgical errors will lead to permanent damage with significant consequences on your life and family. Besides physical and psychological trauma, surgical negligence can bring unexpected financial costs.
You deserve compensation for all the damages you incurred due to negligent surgery. There are some essential steps you should take before and during a surgical negligence claim, such as:
- Seek medical advice to get a comprehensive diagnosis of your condition
- You may want to make an official complaint regarding the outcome of your surgery. A complaint is not essential to claim compensation, but you might receive additional information you can use as proof in your claim.
- Discuss the details of your injury with an expert medical negligence solicitor. If they believe you have a valid claim, they will investigate your case and gather all the relevant evidence to build a strong case, such as:
- Your medical records
- Witness statements
- Your correspondence with the doctor
- Copies of any complaint letters you filed and the responses you received
- Medical reports by an independent specialist
- Appropriate photographs, taken before and after surgery
- Written notes of how the negligent surgical procedure affected your life
- Records of any financial losses you incurred
- After preparing all the necessary documents, your solicitor will send a letter of claim to the medical practitioner you hold liable for your injury, informing them of your allegations of negligence. If they admit liability, you can start negotiating a suitable compensation award.
- You might have to argue your claim before a judge if the defendant denies liability or you cannot settle. This is rarely the case, as more than 95% of all claims resolve without a trial.
How much compensation can I claim for surgical negligence?
The surgical negligence compensation award you might receive if your claim is successful is usually directly proportional to the extent of the injury you suffered.
The compensation for damages can help you get your life back on track and place you back in the financial position you would have had without the negligent surgery. It may cover all the economic losses or special damages you incurred, such as:
- Ongoing medical treatment
- Lost wages, including future losses
- Mobility aids
- Modifications to your home or vehicle
- Rehabilitation and counselling
- Expenses for care and assistance
- Travel expenses
Furthermore, in a successful surgical error claim, you will receive compensation for the pain and suffering you incurred and any other subjective losses, known as general damages, which includes:
- Physical pain and suffering
- Emotional and psychological distress
- Decreased quality of life
- Loss of enjoyment and perspectives
- Loss of a unique career
- Loss or impairment of physical or mental capacity
- Loss of consortium
- Scarring and disfigurement
- Life expectancy reduction
- Loss of amenities
The compensation for special damages is more straightforward and involves summing up all the reasonable financial losses related to the consequences of negligent surgery. It is more difficult to calculate a suitable compensation for personal, subjective losses such as pain and suffering.
Solicitors and courts use the guidelines offered by the Judicial College as a starting point when calculating the compensation for general damages. According to them, you could receive:
- £60,000 to £100,000 for damage to internal organs
- £2,000 to £91,000 for scarring
- £225,000 to £281,000 for surgery errors resulting in amputations
- £12,000 to £300,000 for wrongful death
- £19,510 to £24,680 for loss of spleen due to surgery negligence
- £28,880 to £42,110 for loss of one kidney
- £16,720 to £48,080 for moderately severe psychological damage
- Up to £88,270 for post-traumatic stress disorder with permanent effects
- £36,060 to £49,270 for severe reactions to wrong medication
- £224,800 – £322,060 for severe brain damage, leaving the victim entirely dependent on others
Can I make a surgery negligence claim on behalf of somebody else?
Some victims of surgical negligence, such as children and protected parties, are not considered to have the mental capacity to conduct legal proceedings by themselves. They will need a litigation friend to make a surgical negligence claim on their behalf.
To become a litigation friend, you will need to fill in and serve a certificate of suitability. This must state that you do not have a conflict of interest with the victim, and you can justly and competently represent them.
According to the Mental Capacity Act 2005, a protected party includes anyone who lacks mental capacity due to:
- High levels of stress due to anxiety or PTSD
- Severe sleep deprivation
- An intellectual disability like autism or Down syndrome
- Severe mental disorders such as schizophrenia or major depression
- Neurodegenerative disorders like Alzheimer’s or Parkinson’s disease
- Being in a coma
- Having suffered a stroke or brain injury
You can also claim compensation for a family member who passed away due to a surgical error. Furthermore, a person whose first language is not English may appoint you as their litigation friend if they have trouble communicating.
Some of your duties as a litigation friend include:
- Attending court appointments
- Pay any fees requested by the court
- Consult with the solicitor
- Make decisions regarding the claim
- Consider compensation offers
- Make sure the victim goes to all medical appointments
- Deal with related correspondence
- Keep updated on the claim proceedings
- Sign legal documents
Medical negligence claims can be particularly complex and might take years to conclude. Assuming the role of litigation friend is a long-time commitment that will come to an end if:
- The victim receives surgical negligence compensation
- If you represent a child, your duty ends when they turn 18 regardless of the claim status
- When a protected party regains mental capacity or recovers from their illness
- If you apply for a replacement on account of a valid reason
Will I need to go to court to make a surgical error claim?
NHS Resolution is the insurance company that settles all medical negligence claims made against the NHS. According to them, in 2020/2021, they settled 15,674 claims for negligence against NHS Trusts. Of these, 74.7% were resolved without court proceedings.
While 25.3% needed formal court proceedings, only 0.3% actually reached trial. Therefore, it is highly unlikely you will have to argue your case before a judge.
Both NHS Resolution and any other insurance company you might be claiming against will aim to keep cases out of formal court proceedings. Settling out of court brings several advantages, both for you and the defendant, including:
- It gives both parties control over the outcome of the claim. Unlike court decisions, settlements cannot be appealed, so accepting a compensation offer closes the case.
- Settling will likely bring a much faster resolution to the case than going before a judge. Personal injury cases may take several years to resolve in court, and appeals might further extend this period.
- Going to court is far more expensive than settling due to court charges and expert witness fees. Furthermore, the losing party may have to pay the legal expenses for the other side.
- It is generally less stressful than going to trial. In a court hearing, you will probably be expected to testify, which leaves you open to cross-examination, which can put a lot of pressure on you.
- Furthermore, trials are public records, while settlements are private and might include a confidentiality clause.
Who pays the compensation for a surgery negligence claim?
The hospital itself or negligent doctors will not pay for their surgical error. All claims against an NHS provider are settled by NHS Resolution. Likewise, any private healthcare professional needs to have public liability insurance, which would cover any compensation payments.
If you decide to make a surgical negligence claim, you will be claiming against an insurance provider. Suing the NHS will not affect funds for patient healthcare, as each Trust is required to pay an annual premium to NHS Resolution. Your compensation will not be taken away from the resources allocated for care and treatment.
If you make a claim against a private surgeon or hospital, your solicitor will identify and contact their insurer. Nearly all private doctors in the UK are insured with one of the three Medical Defence Organisations: Medical Defence Union (MDU), Medical Protection Society (MPS) or Medical and Dental Defence Union of Scotland (MDDUS).
Unlike NHS doctors, who are employees of the NHS Trust, private doctors operate as contractors out of private hospitals or clinics. Unlike NHS Resolution, the MDOs can consider each case and decline to assist if they find it fitting.
Therefore, undergoing private surgery is not as secure as treatment in the NHS. You might only be able to secure compensation against the doctor’s assets, which may not be enough to cover the legal costs and your compensation award.
What are the time limits for making a surgical negligence compensation claim?
According to the Limitation Act 1980, you can usually start a surgical negligence claim within three from the surgery date or the date you learned of your injury.
The three-year claim limitation date does not always apply. For example:
- You can make a surgical error claim on behalf of a child at any point before they turn 18, regardless of when they had surgical intervention. Afterwards, they will have until their 21st birthday to make their own compensation claim.
- There is no time limit to claim surgical negligence compensation on behalf of a protected party who lacks the mental capacity to make their own claim. The three-year countdown begins if the victim recovers intellectual ability.
- If you received negligent surgery abroad, you could still be entitled to make a claim. However, the limitation date can vary significantly between countries according to their legislation. You should contact an experienced solicitor as soon as possible if your surgical intervention did not go as planned since the claim limitation date can be as short as six months in some foreign countries.
- If a family member passed away due to surgical negligence, a close family member could claim compensation within three years from the date of their death.
If you suffered an injury or illness after a surgical procedure, you should contact a solicitor as early as possible. Regardless of the limitation date that might apply to your unique situation, negligence claims can be very complex and gathering all the necessary evidence can take many months. Therefore, most solicitors will not accept a case with less than six months or sometimes even more left until the limitation date.
Can I still claim if my surgery happened abroad?
You may choose to undergo surgery abroad, either because of a better specialist referral or due to financial reasons. However, the health and safety standards and staff training might not be as high as in the UK, and it might be more complicated to receive follow-up care.
If you suffered an injury or illness due to surgical negligence abroad, that might make the situation even more distressing. You might need prolonged hospitalisation and may not be able to return home as soon as you hoped. Furthermore, cultural differences and language barriers can further complicate your circumstances.
Nonetheless, if the surgery you received was below the acceptable standard of care, you should be able to claim surgical negligence compensation.
The time limits to claim for an injury that happened abroad can vary significantly from country to country and could be much shorter than three years. Therefore, it is essential to contact a medical negligence solicitor as soon as possible. They might be able to start working on your claim even before you return to the UK.
Your legal adviser will investigate the hospital and medical practitioners involved in your case and will work to identify who is ultimately liable for your injury and who their insurer is. It should be possible to claim through the UK courts even if you arranged private treatment abroad, but it may also be necessary to make a surgical error claim in the country where you had the surgery.
Will I be offered a no win no fee service?
A surgical error can have devastating consequences for you and your family. Unfortunately, surgery errors are often quite severe and may cause permanent damage, including paralysis. Besides physical pain and suffering, you might suffer severe psychological trauma and considerable financial losses.
Immediately after such a traumatic event, claiming compensation might not be at the forefront of your mind. Nonetheless, the time to start a surgical negligence claim is usually limited, and you should contact an experienced solicitor as soon as possible.
Although compensation cannot make up for your suffering, it might cover all the financial expenses you incurred, so you can focus on recovery and rebuilding your life.
If you decide to make a claim, you should not worry about investing a lot of money into an uncertain legal process. If your solicitor believes you have a fair chance of success, they will offer you a no win no fee agreement.
If you make a no win no fee claim, you do not have to pay any upfront charges or solicitor fees. Furthermore, your solicitor will take out After the Event (ATE) insurance on your behalf, which provides full financial coverage if your claim is unsuccessful. If you don’t receive compensation, you don’t owe a penny to anyone, so there are no financial risks.
You will only have to pay anything if your claim is successful. If you win the case, the defendant will have to cover most of your legal charges. You will only need to cover some basic fees, the cost of the ATE premium and a success fee to your solicitor.
Regardless of the time and effort your solicitor dedicates to your case, the success fee cannot exceed 25% of your compensation award, and you will decide upon it at the start of your claim, so there are no hidden surprises.