Medical negligence compensation for poorly performed surgery

21 February 2019

By Medical Negligence Paralegal, Emily Taylor

Surgery comes with a significant level of risk which you will be asked to consent to before the procedure. By consenting, you accept that issues can arise through no fault of the surgeon. However, sometimes avoidable issues can be caused by poorly performed surgery, which falls outside this level of accepted risk. In these circumstances, you could be entitled to make a Medical Negligence claim.

Most Medical Negligence claims can be dealt with on a No Win No Fee basis.

Needing an operation can be a really worrying time. Patients often worry about:

  • whether the operation will be successful
  • the amount of recovery time required
  • the need for time off work
  • whether there will be scarring

Something that patients shouldn't have to worry about is the care that they will receive prior to, during and after the surgery. But often they do.

Whether the surgery is a routine procedure, or something much more complex, all surgeries come with certain risks and there is often a fear that the surgery will go wrong. When surgery does go wrong, patients can lose all faith in the health care teams providing their care, and the health service as a whole. It is important to them to understand whether it has gone wrong by chance, or whether it is due to the performance of their surgeon and consultants.

Consenting to Risks in Surgery

Before you have surgery you will be asked to consent to a number of recognised risks associated with the procedure. These can often be: bleeding, clotting, infection, damage to nerves, anaesthetic risks, failure of operation and secondary surgery.

By consenting, you are confirming that you are aware that one or more of the recognised risks can occur through no fault of the surgeon and you are happy to proceed despite the risk of a poor outcome.

When a Poor Outcome Can Be Avoided

It can sometimes be the case where surgery has been unsuccessful or problematic, that the cause was not down to a general risk of the procedure, but actually down to the medical treatment itself and the standard of care that you received. When a patient suffers a poor outcome due to a lack of care, skill and competence they may be entitled to receive compensation for any injuries caused as a result of the negligent medical treatment.

Surgeons are bound by a duty of candour which means that they should be honest with their patients about complications and problems which occur during the surgery.

NHS Never Events

The NHS have a list of surgical 'never events'. These are incidents that are entirely preventable because there are safety recommendations and guidance in place to provide strong systemic protective barriers.

If a 'never event' occurs this suggests NHS medical negligence. This can be used to support a medical negligence claim, as this guidance is available at a national level and should have been implemented by all healthcare providers.

Some 'never events' include: wrong site surgery, wrong implant/prosthesis and retained foreign objects post procedure. Given that these are events which should never happen, it would be reasonable to think that this is a rarity. However, between 2016/17 there were:

  • 189 cases of wrong site surgery
  • 114 cases of retained foreign objects post procedure
  • 53 cases of the wrong implant/prosthesis being used

Surgery can also go wrong when insufficient consideration is given to a person's medical history or background. Sometimes a patient is not a suitable candidate for surgery, but this is not properly assessed at the pre-operative assessment and the surgery goes ahead and causes complications and further injury.

Claiming Compensation for Medical Negligence

To recover medical negligence compensation for poorly performed surgery, the following must be established:

  1. Breach of duty of care – we have to establish that the standard of care provided fell below the level to be expected of a reasonably skilled and competent practitioner in the relevant field of medicine at the time in question. It is a defence to any claim to establish that there is a responsible body of medical opinion who would have acted in the same manner in which they acted in your case.

  2. Injury, loss or damage – we will need to establish the extent of injury, loss or damage that has been suffered by the patient.

  3. Causation – in addition we have to establish that any identified negligent act or omission to act was the probable cause of the injury, loss and/or damage.

You can recover medical negligence compensation from the NHS or from your private healthcare provider. This compensation is not just for pain, suffering and loss of amenity but also for reimbursements of the costs you have incurred due to the negligent surgical treatment. This can include loss of earnings, travel expenses and the cost of purchases that you would not have incurred had the negligent treatment not have taken place.

At Co-op Legal Services, our Medical Negligence Solicitors understand how difficult these circumstances can be. We are committed to fully investigating your medical negligence case and helping you win the medical negligence compensation that you deserve.

If you believe you may have been injured by poorly performed surgery, please contact us. Our specialist Medical Negligence Solicitors we will be more than happy to discuss your medical negligence claim and advise you of the funding options, including no win no fee arrangements.

More articles