Undergoing surgery is a serious medical procedure that is rarely taken lightly, causing a lot of stress and anxiety for those about to go under the knife. Unfortunately, all surgeries come with a risk, which means that some patients experience complications or surgeries that do not go as planned. In cases where surgical procedures fail to meet the correct standard of care, patients can be left with further complications, injuries or lasting trauma. In such circumstances, surgery negligence claims provide an avenue for patients to claim the compensation they may be entitled to.
In this comprehensive guide, we will answer your most frequently asked questions about surgery negligence claims, helping you understand your rights, the claims process, and how our team at Elite Law Solicitors can help every step of the way. If you are looking to bring a surgery negligence claim on a “no win no fee” basis, book an initial consultation with one of our medical negligence solicitors by calling 0800 086 2929, emailing info@elitelawsolicitors.co.uk or by completing our Free Online Enquiry Form.
What is surgery negligence?
Surgery negligence, or surgical negligence, is a risk that is found in every surgical procedure undertaken. It happens when a medical professional fails to provide a reasonable standard of care during a surgical procedure, resulting in avoidable harm to the patient. This could be due to an error before, during, or after the surgery. Common examples include:
- Performing the wrong operation.
- Leaving surgical instruments inside the patient.
- Damaging the surrounding organs or tissues during surgery.
- Failing to control infections during and after the surgery.
- Inadequate aftercare leading to complications.
Not every surgical complication is classed as negligence. Some risks are inherent in surgery and will vary depending on the type and complexity of the procedure. The key factor is whether your surgeon or medical team acted in a way that no competent professional would have under the same circumstances.
What are common examples of surgical negligence?
While every case is unique, surgical negligence is more likely to appear in certain contexts. Some examples of scenarios that lead to surgery negligence claims include:
- Wrong-site surgery: Operating on the wrong part of the body, such as removing the wrong organ or operating on the wrong limb.
- Foreign objects left inside the body: Surgical tools, swabs, or sponges left inside the patient can cause infection, pain, and further surgery.
- Anaesthetic errors: Administering the wrong dose, failing to monitor vital signs, or causing avoidable awareness during surgery.
- Infection due to poor hygiene: If hospital-acquired infections are caused by substandard cleanliness or failure to follow infection control procedures.
- Nerve damage or organ perforation: Accidental cuts or damage to nerves, tissues, or organs not involved in the original surgery.
- Inadequate consent: Failing to properly inform the patient of the risks and alternatives, meaning they did not give informed consent.
This list is far from exhaustive, but it does highlight some of the more common instances where medical negligence occurs. If you are unsure if your situation constitutes medical negligence, then speaking with a legal expert, like one of our team at Elite Law Solicitors, is the best way to understand your rights.
Do I have a valid surgery negligence claim?
Due to the varied nature of surgery negligence claims, it can be difficult to know if your situation falls into this category. One way to look at it is to consider what it takes to make a valid claim of surgical negligence. To bring a successful surgery negligence claim, three key elements must be proven:
Duty of care
Every surgeon and surgical team owes you a legal duty to provide competent care during your treatment, from the initial consent stage right through to post-operative care. A newly graduated surgeon, for example, should provide the same standard of safe care that an experienced surgeon would when performing the same surgery.
Breach of duty
A claim usually requires evidence that your surgeon or another healthcare professional did something wrong (or failed to do something they should have done) that no reasonable body of professionals would consider acceptable. Examples might include operating on the wrong site, leaving surgical instruments inside the body, errors during anaesthesia, or failing to manage post-operative complications properly.
Causation
It is not enough that something went wrong. In medical negligence claims, you must be able to show that you suffered injury, loss, or unnecessary pain that was directly caused by the negligent act or omission, and not just by an unavoidable risk of surgery. Sometimes, it is obvious, for example, if a swab is left inside you. In other cases, expert medical evidence is needed to prove the negligence and its consequences.
How do I prove surgical negligence?
Surgical negligence claims rely heavily on expert evidence to support the claims made in your case. Your solicitor will gather medical records, statements from you and your family, and opinions from independent medical experts.
These experts will examine whether the standard of care fell short and if the harm suffered was avoidable. Your solicitor will build a robust case using this evidence to demonstrate liability and the impact on your life.
How long do I have to make a surgery negligence claim?
In the UK, the general time limit for making a surgical negligence claim is three years from the date of the negligent surgery or the date you first realised (or should reasonably have realised) that negligence occurred. There are exceptions to this timeline, though, such as:
- If the injured person is under 18, the three-year limit starts from their 18th birthday.
- If the person lacks mental capacity to make a claim themselves, the time limit may not apply until (if ever) they regain capacity.
It is always best to seek legal advice as soon as possible. Evidence is easier to obtain, and you will avoid running out of time if you act promptly with your claim.
How much compensation can I claim for surgical negligence?
The amount of compensation you may receive will be based on the severity of the harm caused and its impact on your life. Surgery negligence compensation typically covers two types of damages:
General damages for surgery negligence claims
General damages compensate you for the pain, suffering and loss of amenity caused by the negligent surgery. This covers physical pain as well as any emotional and psychological impact, including the effect on your quality of life.
Special damages for surgery negligence claims
Special damages cover the financial losses and expenses you have incurred (and may continue to incur) because of the surgical negligence. This is where the full impact on your life is taken into account. This may include things like the cost of further treatment or corrective surgery, as well as rehabilitation costs and potential loss of earnings. Other damages may include travel expenses, any at-home adaptations required or additional care and assistance that is needed as a result of the negligence.
Do you need to go to court for surgery negligence claims?
Most surgical negligence claims are settled out of court through negotiation. At Elite Law Solicitors, we aim to secure a fair settlement without the stress of a court hearing wherever possible.
However, if the NHS Trust or private healthcare provider denies liability, or if a fair settlement cannot be reached, it may be necessary to issue court proceedings. Even then, many cases settle before they reach trial. In the rare cases that do go to court, our team will be there to support you at every step to ensure it is a simple, stress-free process for you.
How long do surgery negligence claims take?
The timescale varies depending on the complexity of your case and whether the other side accepts responsibility.
A straightforward claim where the negligence is clear and liability is admitted could settle within 12 to 18 months. Complex cases involving serious injuries, disputed liability, or multiple expert reports may take more than a year to reach a conclusion. Your solicitor will keep you updated throughout and push for the quickest possible resolution.
What is the process for making surgery negligence claims?
The thought of making a surgery negligence claim may seem intimidating, but with the right approach and professional guidance, it is quite straightforward. At Elite Law Solicitors, we have helped countless clients work through the claims process with ease. Below is a step-by-step overview of how it works and what to expect:
- Free initial consultation: You will discuss what happened with a specialist solicitor, like one of our team at Elite Law Solicitors, who will assess whether you may have a valid claim.
- Gathering evidence: Next, we will obtain your medical records and independent expert reports to establish whether there was negligence.
- Letter of claim: If there is evidence of negligence, we will send a formal letter of claim to the NHS Trust or private provider, setting out your allegations.
- The defendant’s response: The other side has four months to investigate and respond, admitting or denying liability.
- Negotiations and settlement: If liability is admitted, negotiations will begin to agree on a fair settlement figure.
- Court proceedings (if needed): If the other side denies liability or offers an unsatisfactory settlement, we may issue court proceedings.
At Elite Law Solicitors, we handle every step with care, transparency, and regular communication. With our support, you can build a strong case for compensation without fear of getting things wrong.
How are surgery negligence claims funded?
Most surgery negligence claims, including those handled by our team at Elite Law Solicitors, are funded using a no win, no fee agreement (also known as a conditional fee agreement). This means you will not pay any legal fees if your claim is unsuccessful. If you win, your solicitor’s fees will usually be recovered from the other side, with a capped success fee deducted from your compensation.
What if my surgery was carried out by the NHS?
You can make surgery negligence claims against the NHS in the same way as against a private hospital. NHS negligence claims are dealt with by NHS Resolution, the body that handles claims on behalf of NHS Trusts.
Your claim does not affect the care you receive from the NHS, as you are entitled to continue your treatment without prejudice.
What if I signed a consent form?
Signing a consent form does not automatically mean you cannot claim compensation. Informed consent means you should have been properly advised of the risks, benefits, and alternatives before agreeing to the procedure.
If you were not fully informed, or if your injury was due to negligence unrelated to an accepted risk, you may still have a valid claim.
Can I make surgery negligence claims on behalf of others?
Depending on the circumstances, you may be able to make a surgery negligence claim for someone else. You may be able to claim on behalf of a child under 18 by acting as their litigation friend. Or, you can claim someone who lacks the mental capacity to pursue the claim on their own.
In tragic cases where someone has died due to surgical negligence, their next of kin may be able to bring a claim on behalf of their estate and dependents.
Choosing a medical negligence solicitor for surgical negligence claims
Surgery negligence claims can be complex and emotionally draining, so it is important to work with experienced solicitors who specialise in medical negligence.
At Elite Law Solicitors, our medical negligence team has extensive experience in helping people recover compensation for surgical errors and avoidable harm. We understand the impact on your life and are committed to securing the best possible outcome with care and compassion.
Why choose Elite Law Solicitors?
Why choose Elite Law Solicitors?When you choose Elite Law Solicitors for your surgery negligence claim, you get more than legal expertise. We are a compassionate team that understands the challenges you may have faced up to this point. With our support and guidance, we can help you fight for the compensation you are entitled to in a simple, stress-free way. Our clients choose to work with us because we offer:
- Specialist expertise: We have a dedicated team with a strong track record in surgical negligence claims.
- No win, no fee funding: Our team ensures peace of mind that you will not face upfront legal costs.
- Clear communication: We provide regular updates in plain English, so you know where you stand.
- Personal support: We are a friendly, approachable team that will guide you through every step.
Dino Enahoro is an experienced Clinical Negligence Solicitor and the Head of our Clinical Negligence Department; he has many years of experience in dealing with a range of medical negligence claims including, but not limited to:
- Brain Injury Claims
- Birth Injury Claims
- Cerebral Palsy Claims
- Eye Injury Claims
- Cancer Misdiagnosis Claims
- Sepsis Claims
- General Medical Negligence
- Wrongful Birth
Dino regularly provides specialist legal advice and assistance on all aspects of medical negligence to clients nationwide. In addition to office meetings, Dino offers remote meetings to clients via telephone and video conferencing software such as Microsoft Teams so can assist you wherever you are based.
Book a free initial consultation
If you believe you or a loved one has suffered due to negligent surgery and are considering pursuing a surgery negligence claim do not hesitate to get in touch with Elite Law Solicitors. We offer a free, no-obligation consultation to assess your case and explain your options.
Get in touch and book an initial consultation with one of our medical negligence solicitors by calling 0800 086 2929, emailing info@elitelawsolicitors.co.uk or by completing our Free Online Enquiry Form.
