Surgical error – how to make a claim


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Nobody looks forward to spending a period of time (however short) in hospital, with the often stressful prospect of being operated on at the top of most people’s list of necessary evils we would have imagined. But the fact of the matter is most of us have to face up to going under the surgeon’s knife as and when required, and in the best interests of our health and general wellbeing. And although we’re well aware of the degrees of relative risk involved when undergoing surgical procedures it’s not something we choose to dwell on. And nor should we, as in the majority of cases the treatment we receive at the hands of dedicated health professionals is second to none; at every step of the journey, from the initial operation through to the subsequent recovery phase.

However – and as testified by recent high profile cases which make the newspaper headlines – things can sometimes take a turn for the worse when we’re under the care of surgeons and their teams in hospitals and general clinical surrounds.

As we’ve already alluded to above, when we’re contemplating having surgery performed on us, patients tend to have plenty of worries their minds, without having to endure thoughts of what if something goes wrong during what’s been described by the health practitioners as a routine procedure. Nonetheless, and despite their training, medical professionals are only human, and therefore have been known to make mistakes; and of course, this surgical error scenario only heightens patient distress levels, not least because we have entrusted surgeons with what at times can be, literally-speaking, our lives. And once this trust has been eroded in the aftermath of a surgical blunder, psychological pain can augment any physical suffering.

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Is surgical error a large problem here in the UK that I need to be worried about?

Yes and no is the fairest answer to this question. Yes, there have been a number of medical mistakes recorded in the past (especially since 2009 according to a recent BBC documentary which exposed some 750 preventable surgical errors affecting patients during this passage of time); and no, in as much as it’s hardly reached what anyone would called epidemic levels.

However what the BBC programme broadcast in 2013 did do was shed light on the extent of what the Department of Health technically categorises as ‘never events’ – which to the uninitiated is the term used to describe ‘incidents so serious that they should never happen’.

Sounds pretty scary, but are all cases of surgical error as severe?

Again, yes and no. Yes, in as much as there’s always the outside chance that the medical mistake could haunt the victim for a long time (and is more often than not, wholly avoidable), yet no in the fact that – by a considerable margin – not all instances of surgical error can ultimately lead to devastating consequences for those who suffer them.

Let’s be straight here before we go any further. Thousands of surgeries are carried out every day throughout the UK and the vast majority have a successful outcome. It’s just the odd instances where they don’t that we need to flag up, and with direct regards as to where victims stand when it comes to pursuing a claim for compensation again the NHS (collectively or individually (surgeons)) who the individual claimant  believes are responsible for the situation/prognosis which ensued.

So how exactly would you describe ‘surgical error?’

In simple terms, surgical error refers to what’s perceived by experts to be a preventable mistake which takes place during the performing of surgery on an individual. Whilst admitting that all surgical procedures involve an element of risk by their very nature – hence the need to sign a form before undergoing surgery which certifies ‘informed consent’ – patients should always receive the best possible health care before, during and after an operation.

However, mistakes are occasionally made by the surgeon (or by medical staff assisting the surgeon) that cause ongoing pain, suffering or physical deterioration to the patient. And being told that once the surgery is over that you may have to endure further health issues (based on the failings of an accountable medical professional) can prove to be extremely distressing.

What are the most common surgical errors?

There are countless forms of surgical error which can precede calls of medical negligence, and episodes where surgeons and medical staff tasked with carrying out operations and procedures have inadvertently compromised the health of patients. Here we address the most common and recurrent forms of surgical error:

  • Anaesthetic Awareness – Failure to administer the correct dose of anaesthetic (based on height and weight amongst other key elements specific to each individual) can and do result in the patient potentially becoming aware of their immediate surroundings/the surgery taking place
  • Failed Sterilisation – There’s always an outside chance that sterilisation surgery may not be 100% effective, which health professionals admit to from the outset, yet on occasion failed sterilisation surgery can sometimes be put down to human error
  • Accidental Damage to Other Organs – There are instances when accidental damage can be caused to organs (or tissue) located near to the part of the anatomy which is being operated on at the time, of which the surgeon and their team can be culpable of. This can result in ongoing health problems for the patient
  • Unsuccessful Knee Replacement or Fracture Surgery – Significant levels of pain and reduced mobility are reported by a patient should knee replacement or fracture surgeries go awry; with the possibility of further invasive operations being required thereafter to correct the problem

Other examples of surgical error include:

  • The wrong operation being performed
  • The wrong body part being operated on
  • Foreign objects left in the body
  • Cosmetic surgery causing scarring and disfigurement
  • Infection caused by poor hygiene
  • Laparoscopy complications
  • Perforation of bowel, lungs and other organs
  • Blood transfusions
  • Hysterectomy procedures
  • Gallbladder removal
  • Amputation surgery
  • Eye surgery
  • Gastroenterological surgery (bowel, stomach, intestines)
  • Gynaecological surgery
  • Spinal surgery

Surgical error compensation payouts

As no two claims tend to be based on the exact same back story, it can be difficult to put an exact figure on the amount of compensation you may be awarded. What we can divulge (and afford you a clearer picture about at this juncture) is what factors help govern surgical error compensation awards; or more pertinently, are taken into account to establish a ball-park sum all parties involved can then work/move forward with discussion over. These typically comprise of the following:

  • Maximum injury compensation
  • Loss of earnings
  • Private medical treatment
  • Corrective treatment costs
  • Rehabilitation costs
  • Private care costs
  • Out of pocket expenses
  • Effects on dependants
  • Legal costs

Essentially the final amount awarded to a claimant in cases where surgical errors have been proven beyond any doubt is determined by the particular details of individual cases, yet is habitually constructed from two distinct segments from the get-go. These are:

  • General damages – Or in other words the amount calculated on the basis of the nature/severity of the injuries which the claimant suffered. Courts of law will seek guidance from an all-encompassing book published by the judiciary, entitled ‘the Judicial College Guidelines: The Assessment of General Damages in Personal Injury Cases’, which is now in its 13th edition. This book lists specific injuries to parts of the body and the amount recommended for each, altered to take into account the claimant’s previous health, age and the chances of recovery.
  • Special damages – This relates to the sum intended to ensure that the circumstances of a claimant’s injury don’t result in financial (as well as physical and mental) hardship. This will cover any loss of earning capacity brought about by a claimant’s injury (both with regards to now and in the future), together with various expenses (such as medical bills and perhaps specialist care which wouldn’t have been required if it weren’t for the negligence they’d suffered).

How to make a claim for surgical error

All counts of medical negligence, or rather allegations of, can prove to be incredibly complicated to substantiate, as unwavering proof must be compiled to cement claims that a surgeon (or medical support staff) responsible for performing procedures/operation were found to be in breach of their duties at the time. Furthermore it must be unequivocally established that it was their negligence which directly led to physical harm being suffered by a claimant on a case-by-case basis.

Any court will require circumstantial evidence to support any claims, depicting the extent of the harm suffered, along with detailed examples of consequences for the patient, so as to be in a position to award adequate damages should the pursuit of financial compensation be successful.

In addition to this, there are strictly regimented time limits imposed on how long after the surgery a would-be claimant can submit a claim for surgical error, ergo it’s vital to seek legal advice straight away if they believe they have been the victim of medical negligence.

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