Surgery negligence solicitors

Whilst surgery is often needed to help treat or investigate illness in a patient who is already ill, surgical patients are entitled to:

  • clear and thorough personalised information about the operation, its risks and its benefits;
  • safe and effective anaesthetic;
  • safe surgical technique;
  • appropriate management of their health before, during and after the operation;
  • appropriate management of complications.

Where a patient is harmed by negligent handling of the diagnosis and consent processes, or their anaesthetic, surgical or surrounding healthcare management, they may be entitled to claim compensation.

Our experienced medical negligence solicitors have helped seriously injured clients recover compensation following negligent NHS and private surgical care for over 30 years.

What is surgery?

Surgery or a surgical procedure (operation) is medical treatment in which instruments are used to remove or repair a damaged or diseased part of the body. Operations often involve the surgeon making an incision (cut), suturing (stitching) or physically manipulating parts of the body. They can involve fixing or grafting, removing, tying (ligating) or merely examining structures within the body, depending on the purpose of the operation.

During surgery the patient will need either local or general anaesthetic, ventilation (using a ventilator machine to help them breathe whilst under general anaesthetic). They may need support with managing their blood flow (perfusion) if the operation is on their heart.  They also need careful monitoring of important indicators of their general condition, such as their heart rate, blood pressure and oxygen levels. These supportive measures keep them safe whilst the operation takes place.

Medication may be needed before, during or after the procedure, for example, to protect the patient from infection or to prevent blood clots (thrombosis) if they are known to be at risk. Scans may be used before or during the procedure to help locate the part needing surgery and protect the surrounding area.

What counts as informed consent?

The risks to the patient of surgery and anaesthesia must all be considered and managed carefully and discussed with the patient so that they have enough information to give their consent. When deciding whether to consent to medical treatment, patients must be informed of what the treatment involves, any reasonable alternatives, and ‘all material risks’ of the proposed treatment.

This means that the patient is entitled to be properly informed and make their own decision, even where:

  • there is only a small risk of a poor outcome or side effect;
  • the doctor thinks the risk doesn’t justify refusing treatment.

If the patient would consider the risk to be significant enough to affect their own decision, they are entitled to know about it before giving (or refusing) consent. If this information is withheld, the patient has not given ‘informed consent’. If the patient is then harmed during treatment, they may be entitled to claim compensation for their injury.

If a patient lacks the mental capacity to make their own decisions, consent is often sought from a proxy, such as a parent if the treatment is for a child. In these circumstances, the doctor must act in the patient’s best interests.

The patient’s signature on the consent form alone is not conclusive evidence that informed consent was given. The court will also take into account other evidence of the conversation which took place when the patient was asked to give consent, such as the doctor’s record of the conversation in the medical notes.

Types of surgery

When a medical condition needs surgical treatment, the urgency, severity and type of injury or condition will affect the way in which the operation is carried out. Each type of surgery has its own benefits and risks to the patient.

  • Day surgery is carried out in one day, without the patient having to stay in hospital.
  • Keyhole surgery is performed through very small incisions in a patient's skin. The surgeon operates using instruments inserted through a tube which has a fibre optic light on the end. Keyhole surgery is often carried out as day surgery.
  • When keyhole surgery takes place in the abdominal area, it may also be known as laparoscopic surgery.
  • Open surgery takes place through a bigger incision (cut) than keyhole surgery. This gives the surgeon more space to operate and to see the area within the body on which he is operating but open procedures need stitching and take longer to heal. The patient may need longer hospital admission.
  • Microsurgery procedures use extremely small instruments and powerful magnifying devices, to operate on tiny structures within the body, such as nerves, the bones in the ear, inside the eye or small arteries.
  • Elective surgery is where the operation is planned in advance.
  • Emergency surgery has not been planned but is needed for medical emergencies where the patient needs immediate admission to hospital. The operation may take place immediately or during the night where the patient has a serious or life-threatening condition but usually takes place within 24 hours.

What mistakes can lead to surgical negligence compensation claims?

Where a negligent mistake before, during or after surgery causes serious injury which would have been avoided with correct care, the patient may be entitled to claim compensation for that injury and its consequences.

Surgical negligence claims often arise from:

  • misdiagnosis leading to unnecessary surgery;
  • inadequate pre-operative risk assessment, warnings and consent;
  • delays in operating;
  • negligent care before, during and after the operation;
  • negligent surgical technique;
  • perfusion (blood flow) errors;
  • wrong site surgery;
  • anaesthetic errors, including:
    • incorrect intubation (insertion of the tube for breathing purposes);
    • anaesthetic failure and awareness;
    • anaphylaxis (a severe, potentially life-threatening allergic reaction).

Our experienced clinical negligence solicitors have recovered substantial damages awards for clients injured by surgical negligence which caused:

  • spinal cord injury;
  • nerve injury;
  • arterial damage leading to amputation;
  • serious injury from unrecognised haematoma (internal bleeding);
  • serious complications of bile duct injury;
  • bowel injury, peritonitis and sepsis;
  • disability from negligent hip and knee replacement surgery;
  • cardiac arrest and/or brain injury from oxygen deprivation, anaesthetic negligence and perfusion errors;
  • sepsis and other severe complications from post-operative infection;
  • complications of aortic aneurysm.

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Medical Negligence FAQs

  • How much compensation can you get for medical negligence?

    In England and Wales, the law says that compensation for medical negligence should put the injured person back in the position that they would have been in but for the negligently caused injury, in so far as money can. This means that compensation is calculated carefully to reflect the injured individual’s personal circumstances. Whilst the way in which we calculate damages follows certain mandatory principles and practises, the differences in our clients’ injuries, pre-injury lifestyles and post-injury needs means that no two claims will be the same.

    The compensation that an injured person receives from a medical negligence claim depends on:

    • the type and severity of the injury/disability that was caused by the negligent treatment;
    • the cost of meeting the individual’s additional needs which arise from that injury, such as the cost of full-time care, necessary adaptations to housing, therapies, specialist equipment;
    • the financial losses that arise from that injury, such as loss of net income from being unable to work;
    • the length of time that the injured person will be affected by those costs or losses - for example, loss of earnings may be calculated to retirement age, whereas costs of care may continue to the end of life.

    Financial costs and losses will include past losses – from the date of the injury to the date of settlement – and future loss, beginning at date of settlement and projected into the future. Past losses will also include interest.

    All annual (recurring) costs, such as loss of earnings or the cost of care, are multiplied by a ‘multiplier’. The ‘multiplier’ is a figure which represents the number of years that the cost or financial loss will be suffered. It has been adjusted by a ‘discount rate’ which is set by the government. The discount rate allows for the fact that the claimant (injured person making the claim) receives their lifetime’s worth of compensation money early and can invest it and earn interest on it. The aim of the discount rate is to adjust the compensation paid for future losses to ensure that the claimant is neither over nor under-compensated.

    At Boyes Turner we take great care in the way we investigate and gather evidence of our clients’ needs and losses to ensure that our clients receive the maximum possible compensation for their injury. By ensuring that we understand each client’s individual needs, we are able to claim the highest levels of compensation and negotiate the best possible settlements for them.

    Where our client’s life expectation is long or uncertain, it is natural for their family to worry about whether there will be enough money to pay for their care in the long-term future. Where guaranteed provision for lifelong care costs is a priority, we negotiate settlements which combine lump sum payments with guaranteed, index-linked, lifelong, annual payments (known as periodical payment orders or PPOs). The lump sum gives the client flexibility and helps pay for capital costs. The PPO annual payments ensure that the client will always have a regular income which covers the cost of their care. Payments made by PPO are tax-free.

    Each settlement is skilfully negotiated and carefully structured to ensure that the compensation settlement is a source of financial security, certainty and peace of mind for our client and their family.

    Where negligent medical treatment has resulted in the patient’s death, depending on the individual’s circumstances, their family (as individuals or via the deceased’s estate) may be entitled to compensation for:

    • the deceased’s pain and suffering from the date of negligent injury to the date of death;
    • any dependent family members’ ‘loss of dependency’ on the deceased’s income or services;
    • funeral costs and other costs arising from the deceased’s injury and death;
    • a statutory bereavement payment.
  • How can you prove medical negligence?

    Medical negligence cases are legally and medically complex. If you have been seriously injured by medical negligence and want to claim compensation, it is essential that your solicitors specialise in clinical negligence and understand what is required, both legally and medically, to prove your claim.

    The law says that a medical practitioner is negligent if they have acted in a way that no responsible body of medical opinion would regard as acceptable. That means that if the care given was of a reasonable standard the court will not regard it as negligent, whatever the result.

    Where healthcare is found to be (legally) negligent, then the claimant (the person making the claim) must prove that their injury was caused or significantly worsened by the negligent care. This is important because the patient may already be very ill when they receive negligent medical care. In those circumstances, they must prove that their injury (and its financial consequences) would have been avoided or greatly reduced if correct treatment had been given. This aspect of the medical negligence claim is known as ‘causation’. Causation must be proven, even if negligence is admitted, for the claim to succeed and compensation to be awarded.

    Negligence and causation must be proven by supportive opinions from medical experts. We instruct experts in the same field of medicine as the negligent care to tell us whether the care that was given was of a reasonable standard. If negligence is proven, we ask medical specialists in the type of injury suffered, to confirm whether our client’s injury was caused or made worse by the negligent treatment, or would have been reduced or avoided with correct care.

    The medical experts make their assessments by examining the evidence:

    • the best evidence is often contained in the patient’s medical records which were written contemporaneously (i.e. at the time of the treatment);
    • reports of investigations carried out by the NHS trust, GP practice or Healthcare Safety Investigation Branch (HSIB);
    • evidence from a coroner’s inquest or pathologist if the patient died;
    • witness statements from our client and other witnesses;
    • any statements from the defendant’s witnesses – the doctors, nurses and other healthcare providers – which have been disclosed by the defendant healthcare professional or the NHS organisation that employed them.

    The experts may also back up their opinion with other reputable sources of professional information, such as:

    • guidelines published by The National Institute for Health and Care Excellence (NICE), relevant professional training bodies, such as the Royal College of Obstetricians and Gynaecologists (RCOG), or guidelines from the NHS Trust where the doctor worked;
    • research studies published in peer-reviewed, medical professional journals, such as the BMJ.

    They will also draw on their own clinical experience when giving their opinion about whether the treatment given was to a reasonable standard and was responsible for causing the injury.

  • How to make a medical negligence claim

    If you think that you or a family member have received negligent medical treatment which has caused serious injury or disability, we recommend that you speak to one of our friendly, experienced clinical negligence team as soon as possible. You can contact us by telephone or by email. Your enquiry will be handled confidentially and preliminary advice in relation to pursuing a claim will be given free of charge.

    Our solicitors will:

    • ask you to tell us, briefly:
      • what has happened;
      • what you think went wrong;
      • about your injuries;
      • how the injury has affected various aspects of your life.
    • advise you about the limitation deadlines (time limits) which apply to your claim;
    • advise you whether we are able to help you investigate your claim.

    If we are able to help you, we will;

    • ask for your medical records or authority to apply for them on your behalf;
    • discuss funding methods for making your claim and take steps to secure the best method of funding;
    • take a detailed statement from you which captures your recollections of the events which led to the injury and are relevant to the claim;
    • instruct medical experts to advise on breach of duty (to prove negligence) and causation;
    • we may also arrange a meeting with the experts and a barrister (counsel) to which you will be invited to attend.

    Once our initial investigations have taken place, we will;

    • discuss with you the strengths and weaknesses (the merits) of your claim;
    • discuss with you our strategy for pursuing the claim;
    • discuss any further evidence that is needed to support your claim;
    • notify the defendant (hospital or doctor) of your intention to pursue a claim and invite them to respond, giving them an opportunity to admit liability, before court proceedings are issued.

    If liability is admitted, we will enter judgment and apply for an interim payment as soon as possible to meet any urgent needs that you may have as a result of the negligently caused injury.

    If liability is disputed, we will discuss with you the further steps that we need to take to progress your claim.

    At all times our approachable, experienced clinical negligence lawyers will ensure that you are informed of any developments and understand the process. Your solicitor and our friendly support staff will always be available to discuss any concerns or queries that you might have along the way.

  • Is there a time limit for claiming medical negligence compensation?

    The law states that, in most cases, someone who has been injured as a result of medical negligence has three years from the date of the negligence which caused the injury to issue court proceedings. If they fail to issue court proceedings within that time, their claim will be statute barred, meaning that they lose their right to bring a claim.

    There are the following exceptions to the three-year rule:

    • if a child is injured before they are 18, their three-year deadline expires on their 21st birthday. In other words, their time doesn’t start to run until they are 18;
    • if the injured person is mentally disabled (lacks mental capacity) then their time doesn’t begin to run at all, unless their mental capacity is restored;
    • where the injured person has died as a result of negligent treatment, the three-year time limit expires three years after the date of their death;
    • if the injured person couldn’t have known that they had been injured by negligence, the court may allow a valid claim to proceed. In these circumstances, the claim must be issued within three years of when the injured person first became aware (or should have suspected) that they had been injured by negligent care;
    • the court has a general discretion to extend the time limit in cases where none of the above exceptions apply, but only does so in exceptional circumstances.

    Regardless of your time limit, we recommend that you contact us as soon as you can after the injury has taken place, even if at that stage you are only considering whether to make a claim. By contacting us early:

    • you may avoid later problems with deadlines;
    • we can advise you how to collect and preserve essential evidence;
    • we can ensure you have the best chance of securing your entitlement to full compensation for your claim.
  • How long do medical negligence claims take?

    The duration of a medical negligence claim depends on the individual circumstances of the client’s case. The claim is likely to take less time to conclude where:

    • liability is admitted by the defendant (NHS hospital or doctor);
    • the injured person’s injuries have stabilised and their prognosis (long-term outcome) is clear;
    • the injured person’s needs, the costs of meeting those needs and other financial losses are straightforward and easy to assess clearly.

    Circumstances which make the claim more complex and therefore take longer to resolve include:

    • where the defendant disputes that they were negligent or that the medical treatment given (even where admittedly negligent) caused the client’s injury;
    • where the injured person is a child whose disability is expected to change with their growth and development over time;
    • where multiple experts in different disciplines are needed to assess complex injuries and the likely long-term outcome.

    Our nationally acclaimed clinical negligence solicitors have helped hundreds of individuals and families whose lives have been devastated by medical negligence and we understand the impact that these tragic events and their financial consequences can have. We work hard to secure early admissions of liability and substantial interim payments so that we can begin to alleviate financial hardship and provide essential care, respite, specialist equipment, therapies and home adaptations long before the claim has settled. With liability judgments secured and interim funds in place, the individual and their family are able to focus on rebuilding their lives whilst we concentrate on valuing and negotiating settlement of the claim.

  • Will I need to go to court to claim medical negligence compensation?

    Our highly experienced medical negligence lawyers are recognised by Legal 500 and Chambers as experts in handling clinical negligence claims. Whilst we cannot guarantee that any particular claim will settle out of court, we take great care in investigating and preparing each claim that we take on. Our clients’ claims usually settle successfully without the need for a contested trial.

    Occasionally, cases can only be concluded by a formal court hearing, such as where:

    • NHS Resolution, the NHS’s defence organisation, decides to test the courts’ approach to a particular type of claim by taking a case all the way to court;
    • there is a point of law in a claim which needs clarification to avoid confusion is future cases;
    • where there is strong disagreement between the medical experts for each side about whether treatment amounted to negligence or caused the injury, needing the court to decide;
    • where there is a factual dispute about what happened between the parties which must be decided upon by the court before liability can be determined.

    Where our client’s claim is complicated by any of the above, we may advise our client that for the case to proceed it must go to a court hearing. Our caring and highly experienced solicitors and barristers ensure that our clients are always kept informed and supported.

    Even in non-contested cases, there will be occasions when the case is brought for shorter hearings before the court, such as after a settlement for a child or brain injured adult without mental capacity takes place.  In these cases, the lawyers for both sides present the agreed settlement to the court for the judge’s approval.

  • How to fund a medical negligence claim

    • Legal Aid – for brain injuries at birth

    As top-rated specialists in cerebral palsy and other serious neurological disability claims, we have access to Legal Aid funding for eligible clients. Where the child’s case is funded by Legal Aid, the family can be sure that on the successful conclusion of the claim, their child will receive their full compensation without any deduction for legal costs. Where Legal Aid is available for a child with serious brain injury, we believe that it is in the child’s best interests for their claim to be covered by Legal Aid.

    This form of funding is only available to those who have suffered a brain injury, such as cerebral palsy, at birth or within the first few weeks of life. The child must have suffered their brain injury in England or Wales, and they must not have substantial funds of their own. The parents’ finances are ignored for the child’s application.

     Legal Aid funding will only be given to a child where their claim is handled by a solicitor who has been approved as a specialist in cerebral palsy and child brain injury claims by the Legal Aid Agency.

    •  No win no fee – conditional fee agreement (CFA)

    Where Legal Aid is not available, we act for clinical negligence clients on a conditional fee agreement (CFA or ‘no win no fee’) basis.  Just as the name says, no win no fee means that unless our client wins their case there are no legal fees for them to pay. If the case fails, we do not get paid for the time we have spent working on their case. Our client’s liability for disbursements (such as expert and court fees) and any entitlement the defendant might have to legal costs is paid by an after-the-event insurance policy. 

    CFAs make it easier for people to afford a legal claim because they do not have to pay any upfront charges. There are no legal bills along the way. They pay nothing if they lose their claim. If they win, nothing is payable until the end of the case.

    •  Legal Expense Insurance

    If an injured person has legal expense insurance which was in place at the time that they were injured by medical negligence, their legal expense insurance policy might help with funding their claim. If you have legal expense insurance, you should let us know as soon as you are considering making a claim.

I am overwhelmed by the outcome in terms of the monetary value and know I should consider it as a near a 'sorry' as I am likely to get from the hospital. It will be nice to start the process of closure on the whole issue now and look towards the future for us as a family. 

Mrs T, Surrey 

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