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 clinical negligence can be brought.

In order to prove a claim in negligence, the patient will need to show that the surgeon performed their operation in a manner which 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 who 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, then their claim for 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. Sometimes foreign bodies such as surgical instruments are negligently left inside a patient following an operation, something which can cause pain and infection. Other types of claim 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.

Additionally, prior to undertaking a surgical procedure on a patient, it is the duty of the surgeon to obtain informed consent from their patient. Informed consent means taking reasonable care to ensure that all material risks of the operation are explained to the patient and ensuring 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 Examples

The Clinical Negligence team at Osbornes Law have many years’ experience of 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 which 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 prior to 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 were of the opinion that the injury to the nerve was negligently caused.

We have also acted for women who have suffered 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.

Have you suffered surgical negligence?

If you or a loved one have suffered injury following an operation then you may have a claim for clinical negligence. 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. 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.

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

Our Promise to You

• 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.

If you think that you may have a claim for surgical negligence, please get in touch with our specialist team, led by Stephanie Prior, Clinical Negligence Solicitor. Call 020 7485 8811 or complete our online enquiry form.