Claiming Compensation For A Surgical Never Event
Has a doctor caused you further pain and suffering through surgical negligence? If so, we understand how frustrated you may be feeling and our guide aims to help you understand what you can do about it.
When we’re unwell, sometimes we have no choice but to put our trust in the hands of healthcare professionals such as doctors or nurses. However, sometimes that trust may be broken through a breached duty of care. As a result, we may suffer further harm that could have been avoided had the medical professional provided standard care.
Our guide aims to help you understand when someone might be liable for a surgical incident that caused your injury. However, if you’re still unsure, our advisors can look at whether your claim holds a chance of success. If it does, they could connect you to a No Win No Fee solicitor to take you through the next steps of your claim.
For more information, contact us on 0800 652 3087. Alternatively, continue reading for further information on making a medical negligence claim.
Select A Section
- What Is Surgical Negligence?
- What Are Surgical Never Events?
- Causes Of Surgical Negligence
- Types Of Surgical Negligence
- Wrong Site Surgery
- Cosmetic Surgery Negligence
- Who Could I Make A Surgical Negligence Claim Against?
- Claims For NHS Surgical Events
- Rates Of Surgical Negligence
- Time Limits To Claim For Surgical Negligence
- Surgical Negligence Compensation Calculator
- No Win No Fee Compensation Claims For Surgical Negligence
- How To Begin A Claim
- Read These Guides Next
- Surgical Negligence Claim FAQs
Whether you access medical treatment through the NHS or through another healthcare provider, you’re owed a duty of care. If you have evidence that someone breached their duty of care, you may have grounds to claim.
There are three criteria that must be met in order for you to hold a valid medical negligence claim:
- A medical professional owed you a duty of care
- It was established that they breached their duty of care to you
- You suffered harm as a result of this breach
Acts of surgical negligence could cause you further harm. For example, you may have been misdiagnosed with an illness or injury that required surgery, despite clear symptoms suggesting you should be diagnosed with something else. If you then later found out you had been given the wrong diagnosis and surgery was never actually needed, this may have caused further avoidable harm or an additional injury.
Additionally, a surgical error caused by negligence could lead to an additional injury. For instance, you may have needed surgery on a severely fractured arm but instead, the surgeon operated on your wrist because the patient notes were incorrect.
Or perhaps a surgeon cut into your internal organs when performing a C-section causing harm to both you and your baby.
Any situations in which you received substandard care, due to negligence, that resulted in psychological trauma or physical pain, could allow you to claim compensation for the damage.
Can you sue if an operation goes wrong?
If your operation was performed incorrectly where other surgeons would’ve performed it correctly, you could sue for negligence. However, you’ll need to provide evidence in order to claim compensation for your pain and suffering.
Surgical never events are classed as serious medical errors made by surgical staff that could have been prevented. The definition implies that they should never happen. However, despite the NHS and other healthcare providers aiming to learn from any mistakes, never events may still happen.
Some common examples, as a list by the NHS shows, might include:
- Operating on the wrong part of the body
- Putting in an implant or prosthesis different to the one discussed or arranged beforehand
- Leaving a foreign object in the body, e.g. surgical pads, swabs, needles or surgical instruments
It is a medical professional’s responsibility to ensure errors like this don’t happen. Failing to do so can be a serious breach of their duty of care to you and something you could make a surgical negligence claim for if you suffer because of it.
In addition to never events, there are other types of errors that happen during surgery that could inflict different severities of harm from minor to severe. However, there isn’t one cause and there are many ways clinical malpractice in various settings could occur.
Some common examples might include:
- Wrong patient notes leading to mistakes in surgery
- Failing to check the right dosage of anaesthetic has been given
- Lack of care when closing up a patient e.g. leaving objects in the person or poor stitching causing further suffering
- Lack of patient aftercare leading to infection e.g. giving the wrong recovery advice, not cleaning surgical wounds properly
- Lack of care before the surgery e.g. not telling a patient the known risks, not assessing a patient is suitable for surgery
If you are able to, you should try to obtain as much evidence possible as to how the negligence happened to support your claim.
For more information on the types of evidence that you may require, see further down in our guide. Otherwise, call our team on the number above and they’ll be happy to provide further help and advice.
Many types of surgeries are performed each day by qualified surgeons who have been trained to a high standard. This includes both high-risk procedures and routine surgeries that have low risks.
Types of surgical negligence can include:
- Cosmetic surgery that has caused psychological trauma due to scarring other surgeons would’ve avoided
- Birth injury through a C-section gone wrong due to carelessness
- Keyhole or laparoscopy surgery, e.g. where a cut has been made too deep causing a puncture to the surrounding areas
- Cardiac surgery that leads to brain damage due to failure to treat the injuries quickly enough, though doctors had ample time for medical intervention
- General surgery, e.g. that caused unnecessary damage to the abdominal organs such as the bowel, gallbladder, colon, liver or pancreas
Furthermore, sometimes the risks mean that surgeries don’t always go as planned through no fault of the doctor performing the surgery. However, there may be avoidable mistakes that happen through carelessness and result in avoidable consequences.
If you feel you received poor care and treatment, contact us and we can assess whether someone was liable.
The act of wrong site surgery is a never event and can have serious consequences for the patient. Not only can it lead to psychological trauma or physical pain, in some surgical negligence cases the consequences could be life-threatening.
There are several types of wrong site surgery. These include operating on the correct body part but on the wrong side, or operating on the wrong body part altogether.
Many factors could contribute to these types of errors. However, some possible causes might include:
- Miscommunication through patient notes
- Not having consistent pre-operative care, e.g. a nurse marking the wrong site for surgery rather than the patient or surgeon doing it themselves
- Failing to confirm the surgery plan with the patient to avoid any mistakes
Hospitals should have a health and safety system in place to protect patients. However, failing to do so could result in errors that lead to surgical negligence.
For more information on how someone could have been liable for a surgical error, contact our team on the number above.
Cosmetic surgery may be a choice someone has made. Or it could be needed as a result of a previous injury such as a skin graft for severe burns.
However, mistakes can be made if proper care isn’t taken to prevent medical errors. For example, the following errors could cause life-altering consequences:
- Using defective implants which cause infection
- Using the wrong tools that damage surrounding nerves, arteries or organs
- Psychological damage from severe scarring caused by poor stitching
- Poor aftercare leading to infection
- Failing to make a patient aware of the risks before the surgery
A surgical negligence claim can be made against any professional who breached your duty of care when providing medical assistance. This doesn’t necessarily have to just be the person who was operating on you. It could include other medical professionals who provided care before or after your operation.
For instance, a nurse who was in charge of your pre-operative care and marked the wrong site on your body for surgery may share liability with the surgeon who didn’t check before operating.
Additionally, if you suffered a surgical error in a dental operation, you may be able to claim against the dental surgery or practice as well.
Medical professionals owe you a duty of care as per the Medical Act 1983. Generally though, any healthcare professional should provide safe and standard care (at least) that focuses on the patient’s needs and best interests.
Failing to comply means they could be at risk of causing patients serious harm. However, liability may be complex. For that reason, the Bolam test may be carried out to assess whether someone was at fault for the harm you suffered.
The Bolam test involves seeking the opinion of unbiased medical professionals of the same profession to determine whether they would have carried out the same actions in the given circumstances. If it’s found that they would have acted in a different way, then it’s possible that negligence occurred.
If you have any questions regarding the duty of care someone has to you, contact our advisors on the number above for more information.
When making a surgical negligence claim, there are several avenues you could take to get started. First of all, you may wish to report the incident, either to the NHS organisation or the private healthcare establishment you received treatment at.
Additionally, if you have a complaint about a private healthcare professional, you could tell the General Medical Council (GMC). They oversee the training for both private and NHS doctors to ensure they’re providing the utmost care they can.
The GMC also investigates any cases where a doctor has put a patient at risk. If they find the allegation to be true, they may decide whether any action is needed. For example, the doctor may need retraining or need to work under supervision for a period of time.
Alternatively, the GMC may refer some surgical negligence cases to the Medical Practitioners Tribunal Service (MPTS). This is a tribunal of doctors and other people who may make an independent decision on the case they are given. If the doctor is found guilty they might face any of the following consequences:
- Having their practice restricted, e.g. through being shadowed while working or requiring further training
- Being removed from the medical register so that they are unable to work as a doctor in the UK
- No action may be taken in some instances
According to NHS Resolution, there were 10,678 new clinical negligence claims in 2018/19. In addition, there were 11,417 settled clinical negligence claims recorded.
The graph below shows the number of clinical negligence claims made in 2018/19 by medical speciality. As you can see, orthopaedic surgery was amongst those with the highest amount of claims. The value of these claims added up to £216 million.
The figures and table are provided by NHS Resolution.
We understand that there may have been a significant period of time since you suffered an act of negligence. However, generally, you have three years from the date of the incident or three years from the date you obtained knowledge that the defendant’s error contributed to or caused your illness or injury.
However, there are exceptions.
For instance, if the person injured is under the age of 18, the three-year time limit will be frozen until their 18th birthday. During this time, someone could claim on their behalf by applying to act as a litigation friend. This could be a parent, guardian, family friend or solicitor, for example.
Additionally, the three-year time limit may be frozen if someone lacks the mental capacity to claim for themselves. If someone regains their mental capacity, the three-year time limit starts from the recovery date. However, if the person isn’t going to regain the capacity to claim for themselves, the time limit will be frozen indefinitely.
Furthermore, someone could also act as a litigation friend for anyone who lacks the mental capacity to claim for themselves.
We have created a table below to clearly highlight the medical negligence claims time limits for medical negligence cases and any exceptions. However, if you have any questions please don’t hesitate to call our team on the number above. They can provide further help and advice.
|Situation||How long do I have to claim?||Exceptions|
|Date of obtaining knowledge that negligence at least contributed to injuries||Three years from the date||N/A|
|Date of incident||Three years from the date||N/A|
|Person under the age of 18||Someone could act as a litigation friend until the date of your 18th birthday||If no one acts as a litigation friend, you have three years from the date of your 18th birthday to claim for yourself|
|Person who lacks the mental capacity to claim||If you don't regain mental capacity, someone could act as a litigation friend and claim on your behalf||If you do regain mental capacity, you have three years from the recovery date|
When making a medical negligence surgical error claim, you may be able to claim compensation for your injury under general damages. General damages cover the physical and emotional suffering you’ve endured as well as any long term impacts inflicted by the medical error.
You may also be able to claim back any financial losses incurred as a result of the negligence under special damages. Special damages cover any past and future monetary losses. For instance, you may have suffered lost earnings, medical expenses, care costs and travel expenses due to medical negligence.
However, it’s important to note that evidence is vital in supporting your surgical negligence compensation claim. You will be required to prove that a medical error caused your injury or further suffering. You’ll need medical evidence to do so.
For instance, you may have received some sort of medical care. This will be noted on your medical record with details of your illness/injury and the diagnosis and treatment given. However, the medical assessment you attend as part of your claim will be vital in trying to prove that negligence caused or worsened your injuries.
Additionally, you’ll require evidence to prove any financial losses such as receipts or payslips.
What surgical injuries can I claim for?
As an alternative to a medical negligence claims calculator, we have created a table to provide you with an idea of what your claim is worth. The figures provided come from the Judicial College Guidelines (JCG). However, they should only be used as a guide as actual compensation figures may vary.
(The JCG is a publication that solicitors may use to help them value illnesses or injuries.)
The figures only cover what you may be able to claim for your injury under general damages. They don’t cover any additional damages you may be claiming for.
|Kidney||Serious and permanent damage to both kidneys or the loss of both kidneys.||£158,970 to £197,480|
|Kidney||The award will be given for an injury that causes a significant risk of future urinary tract infection or other total The loss of natural kidney function.||up to £60,050|
|Kidney||Loss of one kidney and no damage to the other||£28,880 to £42,110|
|Bowels||The award will be given for the total loss of natural function and dependance on a colostomy. However, the award given will depend on age.||Up to £140,870|
|Bowels||The award will be given to severe abdominal injuries that cause an impairment of function and may require a temporary colostomy and restriction to diet and employment.||£41,850 to £65,440|
|Bladder||Complete loss of function and control||Up to £132,040|
|Bladder||Injuries that have involved almost a complete recovery but may have caused long-term effects on natural function.||£21,970 to £29,380|
|Facial disfigurement||Very severe scarring which has left a very disfiguring cosmetic effect and a severe psychological reaction.||£27,940 to £91,350|
|Facial disfigurement||Trivial Scarring which leaves minor effects.||£1,600 to £3,310|
|Scarring||Exploratory laparotomy has been performed but no significant internal injury was found.||In the region of £8,110|
If you require any further information on compensation amounts, please get in touch with our team.
After suffering surgical negligence, you may wish to use the services of a solicitor to claim. But you may be concerned about how you’ll pay solicitor fees if your claim loses. There is a solution. Our advisors may connect you with our panel of solicitors who can represent you on a No Win No Fee basis.
This means if your solicitor doesn’t succeed in winning your claim, you won’t pay solicitor fees. If your solicitor is successful, you’ll pay a success fee. However, the fee is legally capped and is a small percentage of your compensation. Furthermore, you and your solicitor can agree on the fee before your claim begins.
The benefits of an agreement like this mean:
- You can avoid upfront solicitor costs and any ongoing solicitor costs you incur during the course of your claim.
- You can access expert advice from a medical negligence solicitor who is experienced in medical negligence law.
For more information, contact our team on the number above to get started.
Are you ready to start your claim? If so, our advisors can help. They can assess whether you have a valid claim and talk you through the different evidence you may need to further support your claim. Additionally, they can provide an estimate of how much your claim is worth.
However, if you’re not quite ready to start your claim yet and you still have questions, our team can help. They can provide free legal advice to help you understand the next steps you may need to take.
For more information, contact us on the following:
- Call us on 0800 652 3087
- Chat with us using the live chat feature at the bottom of the page
- Fill out the ‘contact us‘ form to arrange a call back at a time convenient to you
Did you suffer a birth injury caused by medical negligence? If so, our guide could help you understand how much compensation you could claim.
If you suffered from dental negligence, you could claim compensation. See our guide for more information.
For any further information on a specific time limit for medical negligence claims, our guide could help.
For more information on the duty of care you’re owed by medical professionals, see the Clinical Negligence Scheme for General Practice.
See the health service ombudsman for more information on how to raise concerns about your general practice.
If you need to make a complaint about an NHS service, see the government guide.
What is the average payout for medical negligence in the UK?
Knowing the average payout for medical negligence may not be helpful as your potential compensation depends on the error and the severity of the injury or suffering it’s caused.
What can you do if an operation goes wrong?
If you’ve experienced an operation that’s not gone to plan, you should report the incident as soon as you’re able to do so. For instance, either through the NHS complaints system or to the General Medical Council.
How do you prove negligence?
Evidence is required to prove that a medical professional’s negligence contributed or caused your injury. This may be through medical documents and additional assessments.
We hope you found our guide on making a surgical negligence claim useful. Thank you for reading.
Guide by Megan
Edited by Ruth