Surgical Negligence Claims

Every year the NHS performs millions of operations (in 2013/2014 there were 4.7m operations performed by NHS hospitals). Many more elective procedures take place at private hospitals across the country every day. The vast majority of these procedures are successful and without complication. However, sometimes surgical errors are made, and in some cases the result of such errors can be catastrophic or even fatal, leading to surgical negligence claims being carried out.

What is surgical negligence?

Surgical negligence happens when a surgeon during an operation causes injury to the patient or makes a pre-existing injury worse than before.

All medical professionals are expected to provide their patients with a reasonable standard of care which demonstrates an acceptable level of competence. Surgeons are therefore expected to provide a reasonable degree of care and skill when carrying out operative procedures. If they do not, and if a patient suffers harm as a result, a claim for surgical negligence can be brought.

In order to prove a claim of medical negligence, the patient will need to show that the surgeon operated in a manner that would not be supported by a responsible and logical body of medical practitioners who are qualified in that area of medicine. For example, a Consultant Orthopaedic surgeon’s performance will be judged by reference to a responsible body of Orthopaedic Surgeons. If there is no such responsible body that would have acted in the same way, the surgeon will be held to have been negligent. In addition, the patient will need to show that this caused them to suffer injury and loss. If the patient can show that ‘but for’ the surgeon’s negligence, they would have avoided injury, and then their claim for surgical negligence compensation will succeed.

Types of surgical negligence

There are many different types of surgical negligence. However, some of those most commonly experienced in practice include the performance of the wrong procedure or operating on the wrong body part.

Wrong procedure or body part

Sometimes foreign bodies such as surgical instruments are negligently left inside a patient following an operation, something which can cause pain and infection.

Nerve damage and organ damage

Other types of claims include causing nerve damage during an operation, or damage to other organs that is not diagnosed and rectified at the time of the surgery (or within a reasonable period of time) and also causing infection to the patient due to poor hygiene before, during or after the surgical procedure.

Informed consent

Additionally, prior to undertaking a surgical procedure on a patient, it is the duty of the surgeon to obtain informed consent from the patient. Informed consent means taking reasonable care to ensure that all material risks of the operation are explained to the patient and that any reasonable alternative or variant treatments are discussed with the patient. If the surgeon does not do this, then the patient will be taken not to have given their informed consent to the procedure, even if they have signed a pre-operative consent form.

Case studies on surgical negligence: insights from Osbornes Law

The Clinical Negligence Solicitors at Osbornes Law have many years experience of in representing patients who have been injured as a result of surgical negligence.

One such example was a patient who was admitted to hospital for an arthroscopy procedure on his shoulder. During the course of the operation, the surgeon used a skin staple to secure an elastic drape that was covering the patient’s shoulder. This staple fell into one of the patient’s operation portals and this went undetected by the surgeon. It was not removed at the end of the operation before the closing of the patient’s wound, and thereafter following the patient’s discharge led to infection. The patient suffered months of pain and suffering before undergoing an x-ray of his shoulder, following which the staple was identified. The patient had to undergo a further operation to remove the staple. Osbornes represented this patient in his subsequent clinical negligence claim against the hospital and obtained an admission of liability. Following negotiations with the hospital’s lawyers, the case eventually settled for a five-figure sum. This included compensation for:

• The pain and suffering experienced by the claimant;
• The cost of subsequent medical treatment on a private basis;
• The cost of care provided to the claimant by his partner following the operation;
• Loss of earnings which the claimant incurred whilst he was off work as a recovering from the surgery due to infection.

Another example was a patient who suffered nerve damage during an open reduction and internal fixation operation following an ankle fracture. The risk of nerve damage was not mentioned to the patient prior to the procedure being undertaken. As a result of the nerve injury, the patient has suffered long-term pain and has been unable to work in her job as a cleaner. Our Clinical Negligence team obtained a supportive report from a Consultant Orthopaedic Surgeon and from an expert in Peripheral Nerve Injury. Both experts thought that the injury to the nerve was negligently caused.

We have also acted for women who have suffered an injury to their bladder and/or bowel, or both during routine surgery and there was a delay in diagnosing this. As a consequence, they suffered life-long medical difficulties.

Starting a surgical negligence claim

If you or a loved one has experienced an injury following a surgical procedure, you may have grounds for a claim based on surgical negligence. Understanding the process is essential to seeking justice and compensation for your injuries.

Gather medical records

It will be necessary for our team to obtain all of your medical records to determine what went wrong and whether this could have been avoided. This documentation is crucial for establishing the facts of your case.

Consult an independent medical expert

Often, we will need to instruct an independent medical expert to comment on the treatment you received and whether in their opinion the level of care fell below that which could be supported by a responsible body of surgeons. This expert will evaluate whether, in their opinion, the level of care fell below that which could be supported by a responsible body of surgeons. Their insights can significantly strengthen your claim. 

Contact our solicitors

Our team of medical negligence solicitors have acted for many patients who have suffered injury as a result of surgical negligence. Get in touch if you wish for them to investigate your claim.

Experienced team for surgical negligence claims

Our dedicated team is here to guide you through the process of assessing your potential surgery negligence claim.

• We will review your potential claim by advising you on the NHS complaints procedure or other alternative procedures if your case does not relate to NHS care and treatment.
• We will not charge a fee for our time in reviewing your case.
• We can assist you with any issues that you may have regarding the complaints procedure or that you encounter in obtaining copies of your medical records.
• We will advise you of the best course of action in respect of your case.