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Claiming for a surgical error

Mistakes during surgery can be life-changing

The process of having surgery can be stressful and traumatic as it typically means time off your feet while you recover. If a mistake happens during surgery, you could be faced with a longer recovery time or further complications. Even if the mistake is not physically life-changing, it can be mentally.

If you or a loved one has suffered from surgical negligence, then you’re probably feeling let down. Nobody expects to come out of surgery with more injuries. If you’ve experienced this, or you’re reading this on behalf of a loved one, then you can seek help.

While the idea of starting a claim may seem daunting, with an expert solicitor, the claims process is as straight-forward and as stress-free as possible. It all starts with one free phone call to a trained legal adviser on 0800 234 6438, which is completely pressure-free. They’re simply there to help you understand if you can claim.

And if you can, then the compensation you receive could help with the impact your injury has had on your life, those around you, and on your future.

What is surgical negligence?

Surgical negligence is a type of medical negligence. Specifically, it refers to when the surgery you received was wrong, delayed (leading to further health problems) or not to the standard of other qualified surgeons. All medical staff who treat you during your stay at a hospital, visit to the doctor or when you receive physiotherapy or counselling have a duty of care towards you. This duty of care provides a universal standard for what you can expect and what’s expected of the professional treating you.

When this duty of care isn’t upheld, that’s when accidents can happen and when claims can be made. Your solicitor is the best person to assess this, and will be able to do so by asking you questions about your experience.

When your solicitor is putting your case together, they will try to establish if other professionals in the same circumstances would have chosen the same treatment or acted in the same way. This means, even when there wasn’t an obvious accident, the person treating you may still have been negligent because they acted wrongly or gave you a treatment others wouldn’t in the same situation.

Starting your claim

Whether you’re ready to start your claim or simply wondering if you can claim, the first step is to get in contact with a trained legal adviser for free on 0800 234 6438. By calling them, you can find out if you do have a claim and be put in contact with an expert solicitor who can deal with your case.

On the call with an adviser, they’ll ask some questions about the surgical treatment you received and the injury or illness you’ve suffered as a result. We know this might be traumatic to relive, but the adviser does this is so they can get a clearer idea of what happened and how it’s affected you.

Following that, if they think you can make a claim, and you decide you’d like to go ahead, they can put you forward to one of their specialist medical negligence solicitors. They’ll then speak to you for free and will gather some more details about your case, so that they can understand fully what help you need. Then, if you’re happy to go ahead they’ll get in contact with the negligent party on your behalf.

There’s no obligation to start a claim when you speak to an adviser – if you’re just looking for advice, they can help with that too.

DID YOU KNOW: You can make a surgical error claim, or another type of medical negligence claim using a no win no fee agreement. However, for Scotland there are different rules that an expert will be able to talk you through.

Is there a time limit to make a claim?

The usual time limit for making a surgical error claim is three years from the ‘date of knowledge’. This often means you have three years from the date of your surgery, or when the injury took place. However, if your injury only became apparent at a later date, you have three years from that point to start a claim. If you’re unsure, don’t worry – a trained legal adviser can let you know when they speak to you if you’re able to start a case.

What’s involved in proving negligence happened?

For a successful surgical error claim to be made, your solicitor will need to prove that:

  • There was a doctor-patient relationship, and the doctor therefore owed you a duty of care
  • The doctor breached that duty of care (i.e. was negligent)
  • The doctor’s negligence caused you harm
  • The injury led to further injury, illness or suffering (e.g. you were left in mental or physical pain, were unable to work, or you needed more medical treatment and/or long-term care)

To help your solicitor with your case, it’s likely they’ll ask you to attend a free medical assessment. This is nothing to worry about, and is a routine part of any personal injury claim. The free medical assessment is done with an independent doctor who’s tasked with understanding the full extent of your injuries. As part of their assessment they may also provide you with further rehabilitation plans and advice.

Types of surgical errors

Surgical errors can happen for a wide range of reasons, including long work hours, excessive tiredness, faulty equipment or even inadequate training. But regardless of the reason the outcome is often that somebody is left with a traumatic experience and a lasting injury.

While there are many different types of accidents that can lead to injury, below are a few examples that might have happened to you:

  • Incorrect treatment given, leading to scarring or in extreme cases amputation
  • Incorrect dose of anaesthetic administered by an anaesthetist
  • Internal injuries, such as punctured organs
  • Misinformation given, not fully explaining the complications, risks or your recovery time
  • Infections, caused by unclean equipment, cross-contamination, or the wrong prescription
DID YOU KNOW: Surgery was carried out on the wrong part of the body 207 times in England in the year between 1st April 2018 and 31st March 2019.

‘Never’ events

‘Never’ events are mistakes that are so serious they should never happen. These types of accidents are commonly seen as avoidable, and when they do happen there has been grave breach in duty of care and likely serious consequences.

Included in ‘Never’ events are mistakes such as:

  • Performing the wrong operation on the right person
  • Performing the scheduled operation but on the wrong person
  • Operating on the wrong part of the patient’s body
  • Leaving something instead the patient’s body
  • Perforating an internal organ

Can you make a surgical claim on behalf of a loved one?

If your child is aged under 18 and suffered negligence during surgery, you can start a claim on their behalf any time up until their 18th birthday. After they turn 18, they then have three years to make a claim themselves. You can also make a claim on behalf of another adult if they are considered a ‘protected person’. An example of this would be if they are unable to make their own decisions legally because of a mental disability, or if the surgery had resulted in them being unable to start their own case.

If the mistake during surgery was fatal, then a compensation claim can be made by the deceased person’s:

  • Spouse
  • Family members
  • Estate

If you’re unsure whether you’ll be able to make a compensation claim on behalf of a loved one, you can speak to a specially trained adviser by filling in the online form or calling 0800 234 6438 for free. They’ll be able to tell you whether they think you might have a case.

How much compensation could you receive?

As well as being physically painful and emotionally difficult to cope with, we know your injury is also likely to have had an impact on your finances. Expert injury solicitors look at each case on an individual basis, and make sure you’re covered for the costs and the effect that the injury has had on your life. Because no two cases are the same, your solicitor can’t tell you exactly how much compensation you’ll receive. But you can get a guideline figure by using our free compensation calculator.

After a legal adviser puts you in touch with one of their solicitors, they’ll work hard to get a good understanding of what you’ve been through, so they can make sure you’re fully compensated and not left out of pocket. For example, they’ll look to cover:

  • The cost of your pain and suffering, both physical and psychological
  • The loss of earnings you might have suffered while off work
  • Any savings you’ve spent to cover bills or other costs
  • Any private medical treatment you’ve needed to put your injury right
  • Transport or accommodation costs for you and your family, while you were receiving treatment
  • Any future costs or adaptations to your home
  • Social events, hobbies, or activities that you’ve missed out on

Starting a medical negligence claim might seem stressful at a difficult time, but the financial support can help to reduce the impact your injury has had, give you peace of mind and can help you move on with your life. You can get in touch with a trained legal adviser for free advice by calling 0800 234 6438.

Who do you make a claim against?

Surgical negligence can happen in any type of hospital or medical practice – you could make a claim whether you’ve been injured in an NHS hospital, private hospital, clinic or doctor’s surgery.

Claiming against an NHS surgeon

If you had surgery on the NHS, then your claim will be made against the trust overseeing your treatment, e.g. Lincolnshire NHS Trust. The NHS will be represented by NHS Resolution (formerly known as the NHS Litigation Authority).

You might feel concerned that making a claim against the NHS will impact their ability to give other people healthcare, but the NHS has systems in place to handle claims just like yours.

Plus, by making a claim, the healthcare service will review their standard of care, which means it’ll be less likely that someone else suffers the same injury you did in the future.

Claiming against a private surgeon

If you were injured as the result of a private operation while staying in a private clinic or an NHS hospital, then your claim will go against the surgeon or anaesthetist who caused the mistake – in some cases that might be both.

Whoever administered your treatment, or performed the operation is legally required to have insurance to cover their expenses in the event of a claim.

It’s important to not forget that those treating you have a duty of care to help you recover and deliver the highest standards of care. If they have failed to do so, you have a right to make a compensation claim.

About the Author

Nicola Laver LLB

Nicola is a dual qualified journalist and non-practising solicitor. She is a legal journalist, editor and author with more than 20 years' experience writing about the law.

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