All surgeries can have an element of risk and the patient subsequently may suffer from side effects. Any risks should be explained to the patient prior to their operation taking place so that they are fully aware of what the potential risks are. The exception to this would be in the case of an emergency procedure.
When we need to have some form of surgery, we have to trust the surgical team to carry out the operation with professionalism and care. Medical professionals owe patients a duty of care to provide a level of care that is of a good standard. Many surgical procedures are performed across the country every day and in the majority of cases, the surgery goes according to plan without any problems. However, if occasionally things go wrong a patient may suffer due to a negligent error whilst having surgery. From a minor surgical error to making a major surgical mistake, or performing wrong-site surgery, for example, surgical mistakes could cause the patient to be harmed. Patients could suffer from nerve injuries, an infection from surgery or could be harmed from anaesthetic negligence. No matter what error was made, if the patient is harmed because of surgical negligence, a claim for compensation could be pursued.
If you believe you may have an operation negligence claim, call Medical Negligence Assist for free legal advice on 0800 652 3087.
Jump To A Section
- A Guide On Making An Operation Negligence Claim
- What Is Negligence In An Operation?
- Negligence In Minor Operations
- Negligence During General Surgery
- Negligently Carrying Out An Unnecessary Operation
- Unsuccessfully Carrying Out An Operation Due To Negligence
- Negligence During C-Section Operations
- Negligently Carrying Out Surgery On The Wrong Site
- Negligence During The Administration Of Surgical Anaesthetic
- Negligent Operations Which Cause New Injuries
- Negligent Operations Causing Nerve Damage
- Time Limits To Claim For Negligence During An Operation
- What Could I Claim? Calculating Operation Negligence Claims
- No Win, No Fee Claims For Operation Negligence
- Contact Medical Negligence Assist
- Helpful Links
If you have suffered due to a negligent error whilst having surgery, you could be eligible to make a claim. No surgery is without its risks but providing these were explained to you prior to the surgery, if an unavoidable injury was to occur, it’s unlikely that a claim could be made. However, if you are injured because of an error that was avoidable, you could then have grounds to make a claim for operation negligence.
For a claim to be successful you must be able to prove that there was a doctor-patient relationship and that your injury was caused by a negligent act, not just from undergoing surgery. Claims for compensation can be complex with numerous legal obligations and objectives. To help you have a better understanding of the process involved, we have produced this guide. In the guide, we first look at the various situations in which negligent surgical errors may be made and the effects they could have. We also discuss the medical negligence claims time limits, what types of damages can be included in the claim and how much compensation you could receive if your claim was successful. We also explain the benefits of having a medical negligence lawyer and how a no win, no fee policy can make making a claim less of a financial burden.
If you have further questions after reading through the guide, please contact Medical Negligence Assist and they will answer any queries you may have.
Negligence in an operation is when the surgeon or surgical team make an error that was avoidable resulting in the patient coming to harm.
All surgeons and their surgical staff have a duty of care to provide a good standard of care before, during and after surgery. The patient needs to be properly assessed before undergoing surgery to ensure they are fit enough to do so. The patient should have explained to them all of the possible risks. During the operation, the surgeon and their team should make sure that no mistakes are made and the patient is safe at all times. Following surgery, the patient should be given post-surgery care to an acceptable standard. If the patient receives a poor level of care that is below the expected standards and is injured as a result, then the surgeon or surgical team could be deemed responsible due to negligence. Injuries due to negligence may not always be solely physical but can be psychological too, or both depending on what has happened.
Types Of Negligence In Operations:
There are various types of negligence that could occur before, during and after surgery if care is below the expected standards that could result in harm to the patient, these include –
- Failing to provide all of the information regarding associated surgery risks or the possible alternatives to surgery.
- Errors with the anaesthetic such as the wrong dosage or the wrong type.
- Leaving a foreign object inside the patient such as medical gauze or even a medical instrument.
- Operating on the wrong body part.
- Failing to provide adequate post-surgery care resulting in infection.
- Not getting consent prior to surgery.
- Performing an operation that was unnecessary.
- Unnecessary delay in surgery.
- Performing the incorrect surgery.
- Failed surgery result due to negligence.
Surgical Never Events:
A surgical never event is a serious act of negligence that categorically should never happen. They are preventable events and impact the patient’s safety. Surgical never events include –
- Performing wrong-site surgery.
- Placement of the wrong implants or prosthesis.
- Retained surgical foreign bodies.
- Administering medication via the wrong route.
- Chest or neck entrapment in bed rails.
Minor surgery is a type of invasive surgery where only the mucous membranes, connective tissue or skin are resected. Minor surgery is intended to be quick, effective and more importantly, safe. All surgery regardless of whether it is minor or major surgery comes with risks, negligence isn’t always to blame. Scarring and post-surgery infections are possible risks that can happen where negligence isn’t a factor. Similarly, if after the surgery you are not happy with the result, it isn’t necessarily due to medical negligence. To be able to make a claim for negligence in minor surgery, you need to be able to prove that your injury was caused by the surgeon or surgical team acting negligently in their duty of care to you and not by the surgery or its risks.
Medical negligence may be to blame for the patient coming to harm during minor surgery if any of the following apply:
- Inherent risks were not corrected as soon as possible.
- The inherent risks were not spotted when they should have been.
- You were not told about the possible damage the inherent risks could cause.
- You were not told about any risks that your surgical procedure may bring.
There are many different types of surgical procedures that take place every day, some more general and commonplace than others. Whichever surgery is to be performed, minor or major, it still requires the medical professionals to give their patients an acceptable level of care throughout. Mistakes in general surgery that could be avoided and therefore deemed as negligent include:
- Failing to carry out pre-surgery health assessments on the patient.
- Failing to inform the patient of any possible risks.
- Using faulty or unclean surgical equipment.
- Anaesthetic errors.
- Performing the wrong surgery.
- Operating at the wrong site.
- Causing an unnecessary level of scarring.
- Failing to provide adequate post-surgery care
When avoidable mistakes are made during surgery resulting in the patient becoming harmed, the medical professionals are in breach of their duty of care. Negligent errors can result in the patient suffering minor injuries or more serious injuries that have a long-lasting effect on their lives. These injuries, in turn, could result in the patient being unable to work either temporarily or permanently, in need of help with personal care and daily tasks or unable to partake in their normal hobbies for example. The psychological effects of being avoidably injured due to surgery can also have a huge impact, sometimes even more so than the physical injury itself. There are often financial implications of suffering an injury too which can be hard to cope with especially on top of everything else.
Making a claim for operation negligence cannot alter what has happened but can give the financial support you need whilst concentrating on your recovery.
When you have been told that you will need to undergo a surgical procedure, it can make you feel anxious and stressed, even more so if the surgeon informs you of a number of possible risks or side effects you could face. However, if you have been advised that the surgery is needed to correct a health problem, then the chances are that you will agree to go ahead. But what happens if after the surgery you find out it was unnecessary or shouldn’t have been carried out? In these circumstances, you may be eligible to make a claim for unnecessary operation compensation for any resulting injuries or side effects, and the unnecessary anxiety and stress you may have endured.
Causes of an unnecessary operation may include:
- Failing to get the patient’s consent prior to surgery
- Failing to explain to the patient if there were any other non-surgical treatment options that could’ve helped or cured their health complaint
- When a partial procedure is carried out when a full one would’ve been more suitable.
If you have suffered due to undergoing surgery unnecessarily speak to an experienced medical negligence solicitor to determine whether you have a legitimate cause to claim.
There are various reasons as to how an operation could prove unsuccessful due to negligence, some of these may include:
- Items left inside a patient such as surgical swabs or tools.
- Wrong-site surgery being performed.
- Internal organs that are unrelated to the surgery being damaged.
- Errors with the anaesthetic resulting in the patient waking up whilst the surgical procedure is still taking place.
- Inadequate stitching preventing the wound from healing properly.
These are just a few examples of why an operation could be unsuccessful due to negligent mistakes being made by the surgeon or surgical team.
During C-Section operations, surgical negligence could cause harm to the mother, baby or both. In some cases, the injuries caused by negligence may be immediately apparent, but sometimes the injuries may not be so obvious straight away. Negligent errors during a C-Section may include:
- Failing to deliver the baby in time resulting in foetal distress or lack of oxygen.
- Lacerating internal organs in error.
- Failure to close the wound properly and stitch adequately, possibly resulting in infection.
- Unsightly scarring.
- Failing to treat a post-surgery infection in the mother or baby promptly and adequately.
Negligent surgical errors during a C-section procedure can result in serious injuries to the mother or baby, or sometimes both. The psychological trauma of an injury being caused as the result of negligent care to either the mother or the baby can be devastating.
If you or your baby has suffered due to operation negligence during your C-section, contact Medical Negligence Assist so that we can help you to determine whether you have a legitimate cause to claim.
Wrong-site surgery is listed as one of the NHS’ surgical never events. This means that this type of error should not happen under any circumstances.
Wrong-site surgery could include errors such as amputating the wrong body part, performing surgery on the wrong organ or performing corrective back surgery on the wrong area of the spine for example.
The best-case scenario of this type of negligence is that at worst it is an inconvenience as the surgical procedure will need to be repeated correctly. However, this type of negligence could have devastating, life-changing consequences.
The Royal College Of Anaesthetists has written up the expected standards of anaesthetic practise in NHS hospitals. The Safe Anaesthesia Liaison Group (SALG) has also highlighted to healthcare professionals, the patient safety issues that could potentially occur. They encourage the reporting of incidents and also ensure that anaesthetists are made aware of any potential risks to the safety of patients.
Anaesthetic errors may include equipment errors, errors regarding drug dosage, and human errors. The NHS refers to some causes as being the human factor, this refers to medical staff not working as a team, or medical staff not adhering to required procedures and protocol during an emergency situation.
There are various injuries that can result from negligent anaesthetic errors, some being serious and life-altering, some of these include:
- Damage to mouth and airways
- Dental injuries
- Oxygen deprivation
- Brain injuries
- Birth injuries
- Heart attack
- Injury to the spinal cord, paralysis, loss of control of some bodily functions
If you or a loved one has been injured due to a negligent anaesthetic error, you may able entitled to make a medical negligence claim.
There are a number of different injuries that could result from undergoing surgery. Although some injuries may be unavoidable where a claim would be invalid, sometimes new injuries may result from negligent errors, these may include:
- Organ damage
- Nerve damage
- Muscle damage
- Internal bleeding
- Cuts and lacerations
- Damage to the spinal cord
- Brain damage
To be able to make a successful claim, you need to be able to prove that negligence was the cause of your injury, you need to be able to prove that your injury was caused by the surgeon or surgical team acting negligently in their duty of care to you and not by the surgery or its risks. Having a no win, no fee medical negligence solicitor would be advantageous as they have the experience needed to build a strong case.
When performing a surgical procedure, surgeons will often be working closely to the patient’s nerves. Although there is always an element of risk with any surgical procedure, avoidable damage to nerves could be caused by negligent care. Damage to nerves can leave the patient with on-going pain, disabilities or in severe cases paralysis.
Ways in which the nerves could get damaged through medical negligence include:
- Anaesthetic being poorly-administered
- Failing to take care when taking biopsies
- Poorly performed hernia surgery where there is a risk to the inguinal and genitofemoral nerves
- Improper use of surgical equipment.
With all compensation claims, be it for an accident, personal injury or medical negligence, there are time limits within which you must have started your claim, 3 years from the date of the incident, or 3 years from your 18th birthday if the accident occurred whilst a child providing a claim hasn’t already been made on your behalf. Or 3 years from the date your injuries caused by medical negligence were diagnosed
Occasionally the time limits may be altered to less than 3 years, or in exceptional circumstances longer than 3 years. Starting your claim as soon as possible after the incident is the best way to ensure you are within the limit.
Compensation claims are generally made up of two type of damages, general damages and special damages:
- General Damages – These damages account for the physical injury and pain and suffering that the claimant has endured. Psychological injury also comes under this category.
- Specials Damages – These damages account for the financial expenses the claimant may have incurred. These include any medical expenses, travel expenses childcare or personal care expenses. Also, loss of income and predicted loss of future income is also included.
Taking all things into consideration, it is easy to see why compensation awards are unique to each individual case and will be different for every claimant. In the table below, using the information from the most recent Judicial College Guidelines that outline compensation awards, we can show how much compensation for general damages you could expect to possibly receive:
|Reason For Compensation||Award Amount||Comments|
|Tetraplegia||£304,630 - £379,100||The higher amount will be awarded to those with pain present or if there is significant impairment of senses or ability to communicate.|
|Paraplegia||£205,580 - £266,740||The level of award will depend on the level of pain present, level of independence, impact on sexual function, depression and age and life expectancy.|
|Bowel Injury||£11,820 - £22,970||Penetrating injuries resulting in some permanent damage although natural function should eventually return to normal.|
|Severe Back Injury||£85,470 - £151,070||A severe injury causing damage to the spinal cord and nerve roots. Severe pain, incomplete paralysis and significant loss of function of the bladder, bowel and sexual function.|
|Moderate Hand Injury||£5,260 - £12,460||Hand injuries such as crush injuries, penetrative injuries, deep lacerations, and soft tissue injuries. The top end of the bracket is for when surgery has failed and a permanent disability remains.|
|Scarring||In the region of £8,110||For cases where an exploratory laparotomy has been undertaken with no findings of anything wrong.|
These amounts aren’t a guarantee of what you may be awarded as your awarded compensation will be individual to your case. However, we have included them to show guideline amounts you could potentially be owed.
No win, no fee claims gives claimants a financially viable option of getting expert legal help when making a claim for compensation. No win, no fee is otherwise known as a Conditional Fee Agreement (CFA). Having a medical negligence solicitor with a CFA means that you are not required to pay your solicitor any fees either before or during the process of making your claim. If the solicitor successfully secures you a compensation award, they will ask for a small contribution for their time and professional service. The contribution will be paid as a small percentage, capped at 25%, of the final settlement amount. If however, the solicitor is unfortunately unsuccessful, you will not have to pay for their service at all.
Medical Negligence Assist work alongside a panel of medical negligence solicitors that have years of experience of making claims for medical negligence compensation. Who work tirelessly to get clients the compensation they deserve for the pain and suffering they have endured. They always strive to get the highest compensation award that is possible making sure that they put together a strong case. They are a friendly and approachable team that will answer any concerns or queries you have regarding your case and always aim to keep you updated of its progress.
If you would like to discuss the details surrounding your case with an expert medical negligence solicitor, you can contact Medical Negligence Assist for a free consultation on 0800 652 3087.
NHS Hospital Negligence Compensation – One of our guides that gives advice on claiming compensation for NHS negligence.
Private Healthcare Negligence Compensation – This guide provides information regarding making a claim for negligence against a private healthcare provider.
Dental Negligence Compensation – This guide gives advice on how to claim if a dentist pulls the wrong tooth.
NHS Complaints – The NHS provide information here on how to make a formal complaint against the NHS.
NHS Complaints Advice – The NHS offers advice here for claimants.
NHS Surgical Never Events – A detailed information account of NHS surgery never events that occurred in English hospitals between April 2016 and March 2017.
Written by Kelly
Edited by Lis.