What is surgical negligence?
All surgery involves some degree of risk, however, if your surgeon makes a mistake, fails to explain complications that may occur post-surgery before you sign the consent form, or the aftercare following surgery proves to be inadequate, then negligence may have occurred.
Surgical error can result from lack of training and experience, the surgeon being overburdened and tired or a failure in communication.
Complications from surgery may also develop days, weeks or even months after your operation. If it can be proven that the problems were caused by surgical negligence, then you may be able to claim for compensation.
Why do surgical errors occur?
Even doctors make mistakes. However, surgical errors can kill or cause serious, life-changing injuries. Despite checks being put in place, for example counting sponges and other equipment before and after surgery, using surgical checklists, and indelible ink to mark the site of the surgery, blunders still occur.
According to research released in 2016, 1,200 unacceptable serious events have occurred in hospitals in England over the last four years. These included operating on the wrong patient or the wrong limb, objects being left inside the body, and a kidney removed instead of an ovary.
Unnecessary surgery can occur due to a clinical, communication and/or administrative error. Tiredness and lack of training can also contribute to surgical malpractice.
What are some examples of surgical errors?
Many surgical errors are referred to as ‘never events’. Never events are the kind of surgical mistakes that should never happen, hence the name given to them.
NHS has a list of 14 ‘never events’ - incidents that can cause severe harm or death and that should never occur because there are robust policies and procedures in place to prevent them. Examples include operating on the wrong part of a patient’s body, scalding a patient and leaving objects in a patient’s body after an operation.
The failure to advise patients of all the accepted alternative courses of action and the risks associated with them (in non-emergency medical procedures) is also considered to be medical negligence as the surgeon or other medical professional has not obtained the patient´s informed consent.
How can surgical mistakes be prevented?
In 2013, NHS England commissioned a taskforce to investigate surgical errors, leading to a new set of national standards being published in 2014, designed to support doctors, nurses and hospitals to prevent surgical errors occurring. Hospitals that report a serious incident are also expected to conduct their own investigation so strategies can be implemented to prevent similar incidents from being repeated.
The government has also demanded that all NHS Trusts have clear ‘whistleblowing’ policies and procedures. These should allow staff to raise concerns about issues that are in the public interest without the risk of suffering from harassment, victimisation or other unfavorable treatment at work.
What should I do if I have been a victim of surgical negligence?
If you are a victim of surgical negligence you should contact an experienced clinical negligence solicitor as soon as possible. You may also wish to use the NHS complaints procedure to help you understand what happened to cause you injury; however, this is not required in order to make a compensation claim. If you do choose to make utilise the NHS complaints process, the investigation can run parallel to your compensation claim unless the judge decides that the NHS complaints procedure would interfere with the compensation case, but this rarely occurs in practice.
Can I claim compensation for surgical mistakes?
You can claim for compensation if you have been a victim of surgical error or malpractice if you can prove that the surgeon or some other health professional’s negligence caused you to suffer harm.
All surgeons owe their patients a duty of care. If the court has to decide whether the surgeon involved in your operation was negligent, they will measure the surgeon’s actions and performance against a similarly qualified and experienced individual, assessing what he or she would do in similar circumstances. If your surgeon’s actions fell below the recognised standard of a competent surgeon, the court may find them guilty of surgical negligence.
You must start your claim within three years of the surgical error being performed or the injury caused by the surgery occurring. Failure to do so could result in your claim being considered ‘out of time’. The court has the discretion to allow an out of time case to proceed, but it will only do so under exceptional circumstances.
A person has three years from the date of his or her 18th birthday to bring surgical negligence claim if the surgery was performed during childhood.
Is it possible to claim against the NHS?
It is definitely possible to make a claim against the NHS and the team at IBB Solicitors are experts at handling compensation claims resulting from surgical negligence. We have an in-depth understanding of what is involved in claiming compensation from the NHS and create sustainable strategies for ensuring a quick settlement wherever possible.
What information will I need to make a surgical negligence claim for compensation?
We will access your medical records and engage an expert to assess your case and any complication resulting from the surgical error. We may also require you to have an independent medical assessment. Throughout this process, your solicitor will provide his or her full support. We pride ourselves on our client care and attention to detail. You can be confident that we will keep you updated on the progress of you case at all times and you will be provided with the direct dial and email of your lawyer.
What do I need to do to make the claim?
Contact us as soon as possible and we will take care of everything for you. From obtaining your medical records, contacting the NHS, instructing expert witnesses through to negotiating settlement, you can rely on us to make your claim for negligence which occurred during your surgery as simple and stress-free as possible.
What is the process of making a claim?
Firstly, you need to instruct an experienced personal injury lawyer, who will listen to your case and establish whether or not you have grounds to make a claim of negligence. The team at IBB Solicitors can assist you with evaluating whether or not you have a chance of successfully claiming compensation. We understand that complications caused by surgical negligence can be distressing and you can be assured we will evaluate your case in a sensitive, compassionate manner.
We will build the case for negligence and then write to the NHS Trust or authority responsible for the hospital in which you had your surgery, stating that you are making a claim for surgical negligence (this is known as the Pre-action Protocol).
The relevant authority will have 90 days to conduct its own investigation into the matter, and either concede that there was negligence or challenge the claim. If the claim is challenged, we will issue court proceedings as soon as possible.
How long with the process take?
It depends on the complexity of your case and the severity the injury caused by the surgical error. Generally, most surgery negligence claims are settled within 18-36 months.
Will I have to go to court?
If the Authority contests the claim, then your solicitor will file proceedings in court. In a vast majority of cases claims are settled before the court date. At IBB Solicitors, we understand how traumatic attending court is for victims of surgical negligence, therefore we strive to obtain a settlement outside of formal litigation. If you are required to attend court, we will provide you with a full range of support and guidance.
How much will it cost to make a claim?
At IBB Solicitors, we provide ‘conditional fee arrangements’, otherwise known as ‘no win, no fee’. This means that if your claim is unsuccessful, you will not have to pay any legal fees to our solicitors.
Because we are shouldering the risk of your claim, you can therefore feel confident that we believe it has a strong chance of success.
You can further protect yourself by taking out insurance to cover the other side’s costs if the court orders that you must pay them.
We will fully explain all your options to you when you come in to see us.
By instructing us to manage your claim for compensation caused by surgical error or malpractice, you can be confident that you have the best possible chance of success. We will expertly guide you through the process, providing you support as and when you require it.
If early settlement is not possible, you can be assured that we will robustly fight your claim in court, protecting your interests and obtaining the compensation you deserve.
If you would like further information on making a compensation claim relating to surgical negligence, please call our office on 0333 123 9099.