Surgical Negligence Claims — Compensation

When Does Surgery Go Wrong?

Surgery is inherently risky. Every operative procedure carries the potential for complications, and not every adverse outcome following surgery constitutes negligence. The fact that a complication occurred does not mean the surgeon or team did anything wrong. Many complications are well-recognised risks of the procedure that can occur even with perfect technique.

Surgical negligence arises where the surgeon's technique, judgement or decision-making falls below the standard of the reasonably competent specialist in the relevant field, and that failure causes avoidable harm. This could be a technical error in performing the operation itself, a failure to convert from laparoscopic to open surgery when complications arose, a failure to recognise and respond to an intraoperative complication, or a post-operative failure to identify and treat complications in time to prevent serious consequences.

Types of Surgical Negligence

• Wrong-site surgery — operating on the wrong organ, wrong side or wrong patient; a NHS England "never event"
• Retained foreign bodies — swabs, instruments or other items left inside the patient; another never event
• Nerve damage — avoidable transection or injury to a nerve during surgery causing paralysis, numbness or chronic pain
• Vascular injury — avoidable damage to blood vessels causing haemorrhage or ischaemia
• Bowel perforation — unrecognised perforation during laparoscopic or other abdominal surgery
• Post-operative complications not recognised — anastomotic leak after bowel surgery, post-operative bleeding, compartment syndrome
• Anaesthetic errors — overdose, drug errors, failure to monitor, awareness during surgery
• Failure to obtain proper informed consent — not advising of material risks that would have affected the patient's decision

Informed Consent and Montgomery

The Supreme Court's judgment in Montgomery v Lanarkshire Health Board [2015] UKSC 11 changed the law on informed consent. A surgeon must take reasonable care to ensure the patient is aware of any material risks involved in the proposed procedure and of reasonable alternative treatments. This shifts the test from what a reasonable doctor would tell a patient to what a reasonable patient would want to know. Where a material risk was not disclosed and the patient would have refused or chosen an alternative had they known, a claim for failure of informed consent may succeed even if the surgery itself was technically competent.

No Win, No Fee Surgical Negligence Claims

We act under a Conditional Fee Agreement. If the claim fails, you pay nothing. If the claim succeeds, a success fee may be deducted from your compensation.