Surgery negligence compensation claims

Surgical procedure negligence claims

In the vast majority of cases surgery will go as planned but unfortunately no surgical procedure has a 100% success rate. Surgeons do occasionally make mistakes which result in injury or a poor outcome. In 2015/2016, 9% of all medical negligence claims received by the NHS related to General Surgery.

A variety of claims can arise from surgical mistakes including:

• delay in performing surgery
• perforated bowel
• perforated bladder
• nerve damage
• retained surgical instruments
• failing to get medical consent from the patient

If you feel that a mistake in relation to your surgery or after care has caused an avoidable injury or a poor outcome, please call Co-op Legal Services to book a free consultation with a Medical Negligence Solicitor. The Solicitor will listen to the information you provide, then provide you with free initial legal advice based on the details provided.

If we take on your claim, your Medical Negligence Solicitor will investigate your treatment by reviewing your medical records and, if appropriate, seeking guidance from independent expert surgeons.

If the investigation reveals that a surgical mistake has caused an avoidable injury or a poor outcome, your Medical Negligence Solicitor will share the findings of the investigation with either NHS Resolution, the NHS Authority that manages claims on behalf of the NHS, or the appropriate Medical Defence Organisation (organisation that provides professional indemnity for healthcare professionals).

Once NHS Resolution/the relevant Medical Defence Organisation agrees that a mistake has been made, your Solicitor will work to agree with them the impact of the mistake on your eventual outcome and the right amount of compensation to be awarded.

If the other side deny liability (fault) your Medical Negligence Solicitor can start litigation to secure a fair compensation settlement for you, including rehabilitation support, future care needs, loss of earnings/income and out-of-pocket expenses.

What is medical consent and why is it important?

All adult patients of sound mind are entitled to decide whether to undergo any medical treatment, and their informed consent must be obtained before this treatment begins.

All medical procedures have recognised risks, even if excellent care is provided. The risks usually relate to certain complications, the treatment not working or some other poor outcome. The level of risk can also be higher or lower for different treatment options.

For a patient to give valid consent, they must be made aware of any risks, material to that patient based on their characteristics, and of any reasonable alternative treatments. This falls under the professional duty of the medical staff performing the treatment.

If this information isn’t provided, the treatment will have been carried out without the patient’s informed consent. If the treatment then causes an otherwise avoidable injury, this could be grounds for a medical negligence claim.

Examples of surgical negligence cases

The two surgery negligence cases below (not dealt with by Co-op Legal Services but reported in a legal database*) demonstrate how Medical Negligence Solicitors can work to secure compensation and rehabilitation support.

The case of Mr V

Mr V was 48 years old when he underwent keyhole surgery to repair a hernia (laparoscopic hernia repair) on 1 November 2011. The surgery was initially believed to have gone well.

However, following the procedure Mr V was leaking fluid from the site of the operation. He later began to experience abdominal pain and was unable to pass urine. He was started on intravenous antibiotics (antibiotic delivered through the vein).

On 4 November 2011, an ultrasound scan was carried out to check whether there was any free fluid in the abdomen as this would indicate that there was a problem which required attention. The scan did not reveal any free fluid in the abdomen or pelvis and so Mr V was discharged home.

On 5 December 2011, Mr V attended A&E complaining of blood in his urine. A cystoscopy, a medical procedure used to examine the inside of the bladder, revealed that part of the mesh used in the initial repair was protruding through a wall of the bladder. Urgent surgical removal by laparotomy was arranged.

Mr V was eventually discharged from the urology outpatients department four and a half months after the initial surgery following a normal cystogram (X-ray examination of the urinary bladder) and a successful trial without a catheter. Mr V was left with ongoing urinary frequency, nocturia (excessive urination during the night), bladder control problems and recurring urinary tract infections – this was estimated to represent a 25% loss of bladder function.

Mr V instructed Medical Negligence Solicitors to investigate whether the surgery had been performed to an appropriate standard. The investigation indicated that the bladder damage had been caused by surgical mistakes.

Mr V’s Solicitors shared the results of their investigation with NHS Resolution who agreed, on behalf of the Hospital Trust, that the bladder damage had been caused by surgical mistakes. The parties worked together to agree the right amount of compensation.

Compensation awarded

Mr V received £27,500 compensation.

The case of Ms D

Ms D was a 31 year old city banker at the time of injury.

Ms D suffered a serious obstetric injury during the delivery of her first child on 7 December 2008. During labour a mid-line episiotomy (surgical incision to assist delivery) was inappropriately performed. This choice of incision carries a greater risk of injury than other types of incision. The incision in fact caused a third-degree tear.

Ms D was not informed of the tear but a repair was carried out. There was no proper examination carried out post-delivery, so the severity of the tear went undetected and was not immediately repaired or treated with antibiotics.

About two weeks later, Ms D had a very painful episode of straining to empty her bowels and she passed a lot of blood. She remained in constant pain and experienced difficulty in controlling her bowels.

Ms D was referred to a Colo-rectal Surgeon at her 6 week check-up. This was when she first became aware that she had suffered a serious obstetric injury. An ultrasound revealed the extent of the injury.

Ms D subsequently underwent repair and reconstruction of her perineum. In the immediate aftermath of the surgery she suffered severe pain for two to three weeks and was bedbound for around five weeks.

Ms D was left with significant ongoing symptoms.

Ms D instructed Medical Negligence Solicitors to investigate whether the standard of care she received had been acceptable. The investigation suggested that the care provided by the Obstetrician had been substandard.

The conclusions of the investigation were shared with the Obstetrician’s representatives who eventually agreed that the care provided to Ms D had been unacceptable. Unfortunately, on this occasion, the parties were unable to agree on the appropriate amount of compensation so the claim continued to a trial so a Judge could decide on the right amount of compensation.

Compensation awarded

Ms D was awarded compensation of £1,148,882, including awards for:

• pain, suffering and loss of amenity £65,000
• interest on pain, suffering and loss of amenity £2,600
• future surgical costs £22,000
• future psychiatric care £25,400
• for all remaining heads of past loss besides loss of earnings £5,500
• loss of future earnings £946,882
• loss of congenial employment £6,500

About surgery

Surgery is performed throughout the NHS 24 hours a day, 365 days a year. In 2015/2016 alone, more than 10 million operations were completed by the NHS.

Surgery can consist of:

• elective surgery (planned surgery)
• emergency surgery
• open surgery
• keyhole surgery
• laparoscopic surgery
• cosmetic surgery

Each surgical procedure carries recognised associated risks, such as:

• pain
• bleeding
• infection
• incisional hernia

In the vast majority of cases surgery will go as planned but unfortunately no surgical procedure has a 100% success rate. There will be patients whose procedure is unsuccessful or who experience complications during/following surgery, but in circumstances where no mistakes have been made and the patient has been adequately taken through the consent process there would likely be no grounds for bringing a medical negligence claim.

* Cases reported in the Personal Injuries Quantum Database of LexisNexis.