A Guide to Claiming Wrong Site Surgery Compensation
If your life, or the life of a loved one, has been affected by medical negligence we can help.
The purpose of this guide is to help anyone who has suffered medical negligence and is considering a legal claim for compensation. If you are looking for medical advice, please see the NHS website.
'Never events' are defined by the NHS to be incidents that are wholly preventable and that could cause a patient serious harm.
These events include incidents when a surgeon operates on the wrong part of a patient's body. This is termed 'wrong site' surgery. The Department of Health has stated that over 300 Never Events were reported to health authorities in the UK in a single year, and in many cases these events can give rise to clinical negligence compensation claims.
The causes of 'wrong site' operations
In some cases, GP negligence can mean that inaccurate or misleading information is passed to the surgeon, resulting in a wrong site operation.
The surgeon may themselves be negligent, failing to take sufficient precautions before the surgery takes place.
The surgeon may also be negligent during the course of the surgery itself, making an error of judgement that has serious consequences for the patient and gives rise to a surgical negligence claim.
Wrong site surgical negligence
If a healthy body part is operated on in error, the Courts recognise that a patient may suffer harm both physically and mentally. In addition to the possible psychological trauma, the result of surgery on the healthy body part may seriously impact the patient's quality of life and life expectancy.
By delaying the correct surgery, the pain and suffering caused by the patient's existing condition may be unnecessarily prolonged. The patient's condition may also deteriorate, and it is possible that they could develop other complications that would not have occurred if the surgeon had operated on the correct area in the first instance.
What are the obligations of medical professionals performing operations?
In order to prevent wrong site operations and other never events, the World Health Organisation (WHO) has prescribed a surgical safety check-list.
Any organisation which engages in surgery is obliged to ensure that both an executive and a clinical lead are appointed in order to administer the check-list.
Prior to surgery, WHO states that the patient must be fully informed about exactly what the procedure involves and of any potential risks or side effects of the procedure. The patient must indicate that they understand all these details by providing written consent.
The area of the body which is to be operated on should be marked in advance of the surgery, and the medical professionals involved should be fully conversant with the patient's history, including any allergies or increased risks. The surgical team should have a clear understanding of the exact details of the procedure, including specific equipment requirements and any concerns that the patient may have.
Do I have a wrong site surgery 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 wrong site surgery 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 wrong site surgery 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 wrong site surgery 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 wrong site surgery? (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 wrong site surgery 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 wrong site surgery will depend entirely on your specific circumstances.
Your wrong site surgery 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.
Should I set up a personal injury trust?
If you are receiving means-tested benefits and are awarded compensation following a wrong site surgery injury, your benefits could be affected. In order to ring fence your compensation and protecting your benefits, you may be able to set up a "Personal Injury Trust" or "PI Trust". Read more: Should I set up a personal injury trust?
Wrong site surgery compensation calculator
Calculating how much compensation you can claim for a wrong site surgery 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 wrong site surgery claim could be worth now:
How long does a wrong site surgical negligence claim take?
The length of time needed to settle a wrong site surgical negligence claim can vary significantly.
For example, a simple uncontested medical negligence claim could be completed in 12 to 24 months. However, if the case goes to court or there is a serious or complex ongoing injury, a compensation claim a number of years. Normally a medical negligence claim will take 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 wrong site surgery 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 wrong site surgery 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?
With a no win, no fee agreement, your solicitor agrees that you will have no legal fees to pay if your claim is not successful.
Our no win, no fee promise
If you have been injured and it wasn't your fault, our no win, no fee guarantee takes the risk out of making a wrong site surgery injury compensation claim.
What do I pay if I win my wrong site surgery 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 wrong site surgery claim?
If your wrong site surgery 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.
Is there a penalty if I withdraw?
Under a No Win, No Fee Agreement (CFA), fees may apply if a claimant refuses to cooperate, or abandons their claim after the legal work has started, or if the claim is fraudulent.
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
Wrong site surgery 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