A Guide to Claiming Surgical Negligence Compensation
If your life, or the life of a loved one, has been affected by a surgical error we can help.
The purpose of this guide is to help anyone who has suffered a surgical error and is considering a legal claim for compensation. If you are looking for medical advice, please see the NHS website.
Any surgical operation presents risks. Even the most routine procedure involves a patient entrusting their health, and life, to a team of doctors.
When a surgical procedure goes wrong due to an avoidable surgical error, however, the effects can have an unplanned-for and life-altering impact, both physically and psychologically.
Personal injury law exists to compensate these individuals and their families for the unnecessary pain, suffering and losses they have experienced.
Do I have a surgical 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 surgical 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.
The amount of money you could claim for your surgical 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 surgical 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 surgical 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 surgical 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 surgical negligence will depend entirely on your specific circumstances.
Your surgical 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.
Can I get an interim payment?
Interim payments are effectively an advance on a probable compensation award. An interim payment may be awarded if the claimant is in immediate financial hardship.
Surgical negligence compensation calculator
Calculating how much compensation you can claim for a surgical 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 surgical negligence claim could be worth now:
How long does a surgical error claim take?
The length of time needed to win compensation for a surgical error can vary considerably.
For instance, a simple uncontested medical negligence claim can settle in 12 to 24 months. If the case goes to court however, the process might take longer. On average a surgical negligence claim takes between 12 and 36 months. To read more about how long your claim could take, see:How long will my claim take?
Will I still be able to claim for a surgical 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 surgical 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 can compensation help people affected by surgical errors?
Compensation can also provide a means of ensuring full expert medical care is received where errors have resulted in longer-term conditions. A compensation award can also cover more practical costs, such as wages lost through inability to work.
Surgical error claims can be difficult to pursue as proving negligence can be complex. Seeking expert legal advice before deciding whether to proceed is highly recommended.
How common is surgical error?
Every year there are approximately 4.6 million hospital admissions to the NHS is England that require surgery. This does not take into account surgical operations in private hospitals and clinics.
Surgery is a heavily regulated practice. The level of regulation recognises the inherent risk involved in surgery, but attempts to significantly reduce the impact of avoidable errors in surgical procedures.
Compensation has been claims for a very wide range of unexpected outcomes, including damage to internal organs and infection caused by poor hygiene, to insufficient anaesthesia and unacceptable levels of scarring.
NHS Never Events
Categorised as ‘never events' by the NHS, because they should never happen, some of the most extreme examples of surgical errors include:
- The wrong operation being performed
- Surgery performed on the wrong body part
- Foreign objects left in the body
- Wrong implants/prosthesis
- Misplaced feeding tubes
According to the NHS Litigation Authority, 2013/14 Annual Report and Accounts, ‘orthopaedic surgery' (surgery of the musculoskeletal system) accounts for 15% of all clinical negligence claims received, and ‘general surgery' for 11%'.
What is the claims process for surgical errors?
The main difficulty in making a claim for a surgical error involves proving that a qualified medical practitioner has behaved in a manner which dropped below reasonably expected standards.
The arguments will often be highly technical, revolving around the details of a complex surgical procedure.
Avoiding long delays
Another difficulty is that cases of surgical error can take years to reach the Courts, or take a long time to settle, as large amounts of evidence will be available on both sides.
In addition, expert testimonies from medical professionals may be required to present a strong case.
The Quittance team of experienced clinical negligence solicitors offer free, confidential consultations and will advise on the key issues surrounding your case.
These issues include what steps can be taken to either conclude the claim sooner, or to arrange interim payments to cover immediate financial needs such as treatment costs and mortgage payments.
No win, no fee - the facts
No Win, No Fee is an agreement with your solicitor (known as a Conditional Fee Agreement or CFA) that means that you can make a surgical negligence claim with:
- no upfront legal fees
- no solicitor's fees payable if your claim is not successful
- a success fee payable only if your claim is successful
No Win, No Fee is the most common way to make a compensation claim.
Our 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 claiming compensation for your surgical negligence injury.
What do I pay if I win my surgical negligence claim?
Your injury solicitor will receive a success fee which is deducted from your compensation, once your claim is settled. The solicitor's success fee can be up to 25%. You and your solicitor can agree the success fee before you start your claim.
What do I pay if I do not win my surgical negligence claim?
If your surgical negligence claim is not successful then you won't have to pay your solicitor any fees. 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.
Is there a catch?
The Conditional Fee Agreement (CFA) sets out the terms between you and your solicitor., No Win No Fee is a regulated activity and as such there should be no nasty surprises in the agreement. Nevertheless, it is recommended that you read the agreement carefully and ask any questions if you are unsure.
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
Surgical 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