When a surgical error occurs, this can have devastating results and it can even in some cases lead to death. On the 27^{th of} January 2000, a serious surgical error occurred at Prince Phillip Hospital in Llanelli where the surgeon removed the healthy kidney of a patient instead of the diseased one.

Recent data reveals that from April 2015 to September 2023, NHS surgeons have been involved in preventable serious errors, including instances of wrong-site surgery, surgical instruments being left inside patients’ bodies, and surgeries performed on the wrong patient or site. Examples include a child’s eyes being erroneously stitched and a two-year-old being left with clips in her chest post-heart surgery.

While all surgical procedures inherently carry risks, it’s imperative that you are adequately informed of these risks before undergoing surgery. While some surgical complications may arise as non-negligent occurrences, in certain cases, they may stem from surgical errors.

Bleeding

While bleeding during surgery is a known risk, if it arises due to the surgeon damaging a major blood vessel, it may be considered negligence. A proficient surgeon should possess the requisite knowledge of the anatomical location of major blood vessels and employ surgical techniques to prevent such damage.

Similarly, the occurrence of a bile leak is a recognised risk associated with gallbladder removal surgery, along with the potential for damage to surrounding organs. A competent surgeon is expected to conduct thorough inspections of the surgical site before concluding the procedure, ensuring cessation of bleeding and closure of bile ducts. Failure to perform these actions, resulting in post-surgical diagnoses of bleeding or bile leaks, can constitute negligence.

Damage to internal organs

Damage to internal organs is a potential risk associated with abdominal surgery. For instance, during procedures like hysterectomy or other abdominal surgeries, there’s a chance of injury to organs such as the bladder or urethra. If such an injury goes undiagnosed until after the surgery, it may be deemed negligent since it should have been identified and addressed before the conclusion of the procedure.

Similarly, while hernia repair surgery carries the risk of hernia recurrence, if a hernia reoccurs shortly after the surgery, questions may arise regarding the adequacy of the initial repair performed by the surgeon.

Equipment and Swabs been left in patients body

During surgical procedures, it is essential to meticulously count the number of equipment and swabs used both before and after surgery. This practice is crucial to ensure that no items have been inadvertently left behind in the surgical wound. Leaving a swab or any other object in the patient’s body post-surgery constitutes a breach of duty and can have serious consequences.

Prosthesis

In hip replacement surgery it is important to ensure that the components of the prosthesis used are compatible and that the correct size is selected. If the prosthesis used is not suitable for the patient or has been placed in the incorrect position, then this can amount to negligence. Such complications can result in the patient often having to undergo revision surgery.

Incorrect surgical technique can amount to negligence. An example of this could be when the surgeon decides to carry out keyhole surgery on a patient who has a lot of adhesions. This can make the procedure more complicated than an open procedure due to poor visibility. If a bleed or other complication occurs, and this is not detected at the time of the surgery then this can amount to negligence. 

Unnecessary surgery

Misdiagnosis can sometimes lead to unnecessary surgery procedures and can also constitute negligence.

In instances where a surgical complication, such as an active bleed, is diagnosed post-surgery, patients may sometimes require open surgery to address the bleed or repair organ damage. This can lead to significant scarring and an extended recovery period following the additional procedure.

In the event of a surgical complication, it is the responsibility of the surgeon to practice candour by informing you about the error and providing an explanation of how it occurred.

Therefore, if you have suffered a surgical complication discuss this with a Solicitor who will be able to advise you whether or not this complication may have been as a result of a surgical error.

Requirement to succeed with a claim

To successfully pursue compensation for an injury resulting from a surgical error, two key elements must be established: breach of duty and causation.

Firstly, it must be demonstrated that the treatment provided by the surgeon fell below the reasonable standard of care expected from a competent surgeon. This standard is not lowered for trainee surgeons; they are held to the same standard as experienced surgeons.

Secondly, it must be proven that the injury suffered resulted from the alleged negligence of the surgeon. This requires establishing a causal link between the surgeon’s actions or omissions and the harm suffered by the patient.

To support these claims in a clinical negligence case, a Breach of Duty and Causation Medical Report is typically obtained from a surgeon expert practicing in the same field of surgery as the operating surgeon. This report helps evaluate whether the surgeon’s actions met the expected standard of care and whether the injury suffered by the patient was a direct result of the alleged negligence.

Damages you can claim

If you’ve experienced a surgical error, you may have grounds for a claim to compensate for the pain and suffering caused by your injury. Additionally, you can seek reimbursement for any necessary further medical treatment or surgeries required on a private basis as part of your claim.

In cases where extensive scarring results from additional surgeries needed due to the initial surgical error, you may be entitled to recover the costs of plastic surgery aimed at improving the appearance of the scarring as part of your claim.

Furthermore, you can seek compensation for any losses and expenses incurred as a result of your injury. This may include loss of earnings due to the time taken off work because of your injury. Our experienced solicitors will provide comprehensive advice on the various aspects you can claim for in such situations.

Claims under the Fatal Accidents Act

If a loved one has passed away due to a surgical error, the representative of the deceased may have a claim under the Law Reform (Miscellaneous Provisions) Act 1934. This claim can seek compensation for the pain and suffering suffered by the deceased prior to their death, as well as for any losses and expenses incurred up to the time of death.

If the deceased had a surviving spouse or partner with whom they lived continuously for at least two years before their death, or dependent family members, the representative can pursue a claim on their behalf. This claim may cover loss of support that the deceased provided to their spouse, partner, or dependents. Additionally, there may be a claim for a bereavement award.

Our experienced solicitors can provide comprehensive guidance on the potential claims available in such circumstances and assist with navigating the legal process.

Limitation Period

In clinical negligence claims, a three-year limitation period applies. This period is typically calculated from the date of the surgery if you were aware that a surgical complication had occurred at that time. However, in many cases, the discovery of an error may happen sometime after the surgery. In such instances, the three-year limitation period is based on the date when you became aware of the injury and that it was likely caused by negligence.

If you believe you’ve been injured due to a possible surgical error, it’s crucial to contact a solicitor promptly to discuss a potential claim. This ensures there’s adequate time to investigate your case before the three-year limitation period expires.

Failing to initiate a claim by taking steps to issue a claim form before the expiration of the three-year limitation period can result in being barred from bringing a claim, as the court may refuse to hear it. Therefore, it’s essential not to delay in seeking legal advice.

It’s important to note that making a complaint to PALS (Patient Advice and Liaison Service) or to the Ombudsman does not suspend the three-year limitation period, which continues to run.

Even if you believe the three-year limitation period has passed, it’s still advisable to contact solicitors. Section 33 of the Limitation Act provides a provision whereby the court may exercise discretion to allow a claim to proceed despite the expiration of the limitation period. A solicitor can assess whether it’s possible to make such an application in your case.

Defendants

If you received treatment under the NHS, the defendant in your claim would typically be the NHS Trust responsible for managing the hospital where the treatment was provided. However, if you received surgery privately, your claim might be against the surgeon who performed the surgery in their personal capacity or against the company managing the private hospital.

In many cases, the NHS may engage a private hospital for you to undergo surgery. In such instances, the NHS retains a duty of care to ensure that the surgery meets a reasonable standard. If a surgical error occurs due to negligence, the NHS can be held liable for resulting injuries.

If you’ve suffered a surgical injury or if you suspect a surgical error contributed to the loss of a family member, it’s crucial to seek advice from our experienced Medical Negligence Solicitors. They will provide comprehensive guidance on whether you have a potential claim, and this initial advice is provided at no cost.

If you would like to discuss an issue, please get in touch to arrange a free no obligation consultation. We’re available by email or phone.