A Guide to Claiming Gastric Band Surgery Negligence Compensation
If your life, or the life of a loved one, has been affected by bariatric gastric band surgery negligence we can help.
The purpose of this guide is to help anyone who has suffered bariatric gastric band surgery negligence and is considering a legal claim for compensation. If you are looking for medical advice, please see the NHS website.
The NHS has reported a marked increase in the number of patients undergoing bariatric, or 'gastric band', surgery.
Laparoscopic adjustable gastric banding involves the positioning of a silicone band around the upper stomach for the purpose of limiting the amount of food that can be consumed.
In many cases, bariatric surgery is successful and improves the health and quality of life of the patient. However, as with all surgical procedures, having a gastric band inserted does involve a certain amount of risk.
In some cases, a negative outcome is the result of a known risk that the patient will have been informed of before the surgery and will have accepted. However, in a small number of cases, harm may be the result of negligence, and may entitle you to claim compensation
The distinction between a negative but anticipated outcome and clinical negligence can be a difficult line to draw, and will often depend on the facts of the case.
Do I have a gastric band surgery negligence claim?
Medical negligence claims differ from personal injury claims as the following will need to be established:
- there was a breach of duty ("negligence" or "fault"); and
- the breach of duty was the cause of your injury, damage or loss ("causation" or "avoidable harm").
Breach of Duty
A breach of duty means that the standard of care you received was below the standard that could reasonably be expected of a competent healthcare professional.
To establish causation, it will need to be demonstrated that the injury you suffered resulted from the negligent care rather than the underlying condition.
Get an impartial opinion
To get impartial advice on whether you have a claim, speak to a gastric band surgery negligence claim expert on 0800 612 7456.
A brief phone consultation will tell you exactly where you stand. There is no obligation to start a claim.
You can also find out if you have a claim with our Online Claim Checker.
Is compensation always payable?
If an error occurred during treatment and the patient was harmed as a result, this may be referred to as an "undesirable outcome".
Not all treatment that results in an undesirable outcome will result in the payment of compensation.
Sometimes an undesirable outcome is due to a known risk associated with the treatment, or due to a mistake that a doctor could reasonably have made in the circumstances.
How long do I have to start a claim?
If your injury is apparent immediately after medical treatment, you will have 3 years to start a claim.
It may be that the negligent procedure happened more than 3 years ago, but your injury was only diagnosed recently, within the last 3 years. If so, you may still be able to make a claim.
What if your injury was diagnosed months or years after treatment?
You may not be immediately aware of your injury. In some cases, months and even years can pass before symptoms appear.
The law allows you to make a medical negligence claim up to three years after the 'date of knowledge' (when you first learned of the injury).
It is recommended that you start a claim as soon as possible, as medical negligence cases can be complex. Starting your claim sooner will give your solicitor more time to gather medical evidence, assess the extent of your injury and to negotiate interim payments and your final compensation amount.
What are the risks of gastric band surgery?
As with any kind of surgery, the use of anaesthetics carries a risk to the patient. Potential complications include nausea, damage to the teeth and throat, and problems with the heart as well as the respiratory system. Doctors are obliged to check that the patient is fit to withstand the administration of anaesthesia in order to decrease the likelihood of such complications occurring.
Patients who undergo bariatric surgery should be given appropriate advice regarding nutrition, particularly in the aftermath of the operation. Because the patient is not able to consume the same amount of food as before, they may not be getting the appropriate level of nutrients for optimum health. It is vital that medical professionals monitor the nutritional intake of gastric band patients, and prescribe supplements if necessary.
Peritonitis is an infection that can occur in the aftermath of bariatric surgery. The infection is caused by a leakage of gastric fluid into the stomach, and can endanger the patient's life. Symptoms of peritonitis include fever and debilitating pain.
When the incision made during surgery does not heal properly, an incision hernia can result. This can cause pain and suffering, and may require further corrective surgery.
If gastric surgery is performed by a less competent medical professional, the blood vessels can become damaged. On some occasions, this can result in a pulmonary embolism, which can endanger a person's life.
The intestines can become blocked following the insertion of a gastric band. This can cause a condition known as aspiration, in which the contents of the stomach reach the lungs. The patient may then struggle to breathe as the lungs attempt to expel this foreign matter.
General infections can be an unfortunate side effect of gastric band surgery. This can happen if the surgeon failed to operate within an environment that was suitably sterile. Infections of the wound, for example, can also be caused by poor post operative care. If these kinds of infections are not managed from the outset, further complications can result that compromise the health and well-being of the patient.
Notification of the risks
If you were not properly informed of the risks, and you are affected by a negative outcome of the surgery which was not brought to your attention, this failure may amount to negligence and you may be able to claim.
Surgical negligence may occur in cases where the surgical team took unnecessary risks during the surgery or were otherwise negligent and you sustained injury as a result.
Pre and post-operative care
You are entitled to sufficient pre- and post-operative care to anticipate and monitor the above risks. If failures either before or after the surgery result in harm that would have been avoided if correct procedures had been followed, a claim may be possible.
The amount of money you could claim for your gastric band surgery negligence will depend on:
- the extent of your injury, and
- any financial losses or costs you have incurred.
At the start of your claim, your solicitor will consider the many ways your gastric band surgery negligence has affected your life. Your solicitor will take all of these effects into account to calculate the correct compensation award for you.
This calculation will factor in 'general damages' and 'special damages'.
General damages are awarded for pain, suffering and loss of amenity (PSLA).
Awards for general damages are set by the Judicial College and published in their guidelines for personal injury awards.
Special damages are for financial losses and expenses you have incurred as a result of the accident.
What can I claim for after a gastric band surgery negligence? (see list)
Examples of special damages (losses you can claim for) include:
- Lost earnings (including future earnings)
- Medical treatment costs
- Travel costs
- Costs of care
- Costs of adapting your home or car
What is the average injury compensation for a gastric band surgery negligence claim?
The Judicial College injury tables give a approximate idea of the ranges awarded for different injuries.
However, the money you would receive following a gastric band surgery negligence will depend entirely on your specific circumstances.
Your gastric band surgery negligence compensation will be calculated based on the unique impact your injuries have had on your life, your ability to work, and the actual financial losses you have incurred as a result of your injuries.
See the injury table above for some examples.
Will a clinical negligence claim affect my benefits?
It may. The receipt of a compensation award could affect the calculation of any means-tested benefits. One approach to protecting your benefits, would be to set up a "Personal Injury Trust" or "PI Trust". Read more: Should I set up a personal injury trust?
Gastric band surgery negligence compensation
Calculating how much compensation you can claim for a gastric band surgery negligence injury can be complicated.
Our injury compensation calculator tells you if you may have a claim, how much compensation you could claim, and what you can claim for.
Find out what your gastric band surgery negligence claim could be worth now:
How long does a bariatric gastric band surgery negligence claim take?
The length of time needed to settle a bariatric gastric band surgery negligence claim can vary considerably.
An uncomplicated liability accepted medical negligence claim might be concluded in 12 to 24 months. However, if court proceedings are needed a claim can take a few years. Typically, a medical negligence claim takes 12 to 36 months. For more information on how long your claim could take, read:How long will my claim take?
Will I still be able to claim for a gastric band surgery negligence after the law changes in April 2020?
The law relating to personal injury claims is changing in April 2020.
You will no longer be able to claim no win, no fee compensation using a solicitor for lower value claims (under £5,000).
In addition, compensation for whiplash and other soft-tissue injuries will be reduced.
Caring and sensitive support
Your solicitor will handle your gastric band surgery negligence claim from the initial consultation through to the financial settlement. In addition, your solicitor will work with other specialists to help you with:
- Financial support: interim payments while you are unable to work.
- Advice: on personal injury trusts, tax and welfare benefits.
- Coordination: with rehabilitation providers and therapists.
- Access: to treatment and therapies not always available on the NHS.
How does no win, no fee work?
'No win, no fee' means that if you do not win your gastric band surgery negligence claim, you will not have to pay any legal fees at all. Known as a 'Conditional Fee Agreement' or 'CFA', no win, no fee is a contract between you and the solicitor.
No win, no fee guarantee
If you have been injured and it wasn't your fault, our no win, no fee guarantee takes the risk out of making a gastric band surgery negligence injury compensation claim.
What do I pay if I win my gastric band surgery negligence claim?
Your injury solicitor will receive a success fee which is deducted from your compensation, after your compensation is awarded. The solicitor's success fee can be up to 25%. Your solicitor will agree a success fee with you before you start your claim.
What do I pay if I do not win my gastric band surgery negligence claim?
If your gastric band surgery negligence claim is not successful then you do not have to pay any legal fees at all. Your solicitor may take out insurance to ensure there will be nothing to pay.
What is Legal Aid available for?
In 2000, the government abolished the right to legal aid in medical negligence cases. Depending on an individual's circumstances, Legal Aid may be available for discrimination cases, criminal cases, family mediation and court or tribunal representation.
How can Quittance help?
Your solicitor will fight for the best possible compensation settlement for you, the highly-experienced panel of solicitors have an excellent track record of winning medical negligence claims.
If you have any questions, or would like to start a No Win No Fee claim, we are open 8am to 9pm weekdays, 9am to 6pm on Saturday, and 9.30am to 5pm on Sunday.
Call us FREE 0800 612 7456 or arrange a callback:
if you can claim
to start a claim
Gastric band surgery negligence FAQ's
Can I claim for someone else?
Yes. In certain circumstances, it is possible to claim compensation on behalf of another person in the capacity of a 'litigation friend'.
If an injured person is either too young or vulnerable, too injured or otherwise unable to claim on their own behalf, their litigation friend can handle the claim process on behalf of the injured person.
The litigation friend will be responsible for communicating with the solicitors, and for making decisions in respect of the claim.
Will I have to go to court?
Highly unlikely. The vast majority of claims that are settled by the solicitor panel are settled out of court.
Only a very small percentage (approx. 5%) of personal injury claims go to court. Generally, only very complex cases, or those where liability cannot be resolved, end up in court.
Cases that do ultimately go to court are held in front of a judge, not a jury.
Will I have to go to a solicitor's office?
No. You will not need visit a solicitor's office. As with most professional services, it is no longer necessary to meet face to face with your solicitor. Personal injury claims are dealt with via email, post and telephone.
Should you need to have a medical, this will be arranged at a medical centre near you or at your GP's surgery.
Can I get an early compensation payment?
If you suffer financial hardship as a result of an injury, you may be able to claim an interim compensation payment.
An interim payment is a partial settlement of your claim which is paid before your claim is concluded. The amount you receive in interim payments would then be deducted from your final compensation settlement or award.
About the author
Howard qualified as a solicitor in 1984 and has specialised in personal injury for over 25 years. He is a member of the Association of Personal Injury Lawyers (APIL) and is a recognised Law Society Personal Injury Panel expert.
Read more about this Quittance Legal Expert