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Compensation for Surgical Errors

Compensation for Surgical Errors

Successfully claiming compensation for surgical errors relies on a series of factors – primarily that you suffered an avoidable injury due to a breach in a duty of care, and also that the injury has had a negative impact on your health.

Not all surgical errors are avoidable – some may be necessary in the process of treating a more serious issue – and often, those that could have been prevented with greater care, are not sufficiently severe to justify a surgical errors claim.

This article aims to share a little information about mistakes that are made during surgery and how – if you or somebody close to you has suffered an injury due to surgical medical negligence – you may be entitled to make a claim for a negligent surgical procedure.

Claims for Wrong Site Surgery

Settlements of surgical error claims often only grab the headlines when claims for wrong site surgery are made following such events as the amputation of the wrong leg, the amputation of the wrong arm or the removal of a healthy organ.

However, there are many surgical errors which pass under the radar of the public, and the consequences of these injuries are only known to those who suffer them and those in their close family or circle of friends.

In some cases surgical errors may not be identified for a number of years, or may even stay undiscovered until a post-mortem examination is conducted after a patient has died. Even then, it may not be too late to make a claim for surgical errors, and you should speak with a solicitor at the first possible opportunity.

Claim for a Foreign Object Left in a Patient after an Operation

One of the more common claims for an injury due to surgical medical negligence is when a claim for a foreign object left in a patient after an operation is made. There is very little defence against a claim for a swab being left inside a patient after they have been sewn up; although, before making a claim for a negligent surgical procedure, it has to be established that an adverse event has occurred.

As with many of the scenarios featured in this article, it may be obvious that an error during surgery has been made, but if you have not sustained an injury or suffered the avoidable deterioration of an existing condition which is attributable to the negligence of the surgeon, one of the medical team assisting the surgeon or an agent of the hospital in which your procedure took place, you may be unable to claim compensation for surgical errors.

One other point that should be highlighted before this article progresses any further is the time allowed in which to claim compensation for surgical errors. A swab left inside a patient might remain undetected for many years until it causes a health issue. It is only when the health issue is identified and attributed to the swab left behind after surgery that the clock starts on the two-year Statute of Limitations.

If you are unsure about as to whether your injury due to surgical medical negligence falls within the time limits allowed to claim for a surgical error injury, you should speak with a solicitor at the first possible opportunity.

Claims for Surgical Complications

A common misconception regarding claims for an injury due to surgical medical negligence is that if you or a loved one has suffered an injury because of the actions or inactions of a medical professional, you will be entitled to compensation for surgical errors. Unfortunately it is not as simple as that.

Taking a claim for surgical complications as an example, a successful claim for a negligent surgical procedure has to show that “at the time and in the circumstances” an injury was sustained due to the negligence of a medical professional which “on the balance of probabilities” could have been avoided with greater care.

If a surgical complication occurred during an operation was not of the medical professional´s making, and the injury you sustained was due to the surgeon taking an action that prevented a more significant injury from being suffered, it is unlikely that a surgical error injury claim would be successful.

If, however, the potential for a surgical complication could have been foreseen by a more careful study of your medical history before the operation started, you will be entitled to claim for a negligent surgical procedure – only, it may not have been the surgeon who was negligent and caused your injury, but an administrator, a technician or other “agent” of the hospital at which your operation was performed.

Claiming for Errors during Operations

Because the frequent uncertainty about whether an avoidable injury due to surgical medical negligence has in fact occurred – and the uncertainty over who may have been responsible – the Injuries Board will decline to assess applications submitted to them that involve potential medical negligence and will issue you with an “Authorisation” to pursue your claim through the courts.

You will consequently need the services of a solicitor when claiming for errors during operations – not only because a court hearing may be necessary to resolve your claim for a negligent surgical procedure, but also because a solicitor has experience of the procedures involved when claiming compensation for surgical errors and will be able to guide you through them at a time when you may still be recovering from an injury due to surgical medical negligence.

Your solicitor would usually help you make a formal complaint about the treatment you received in hospital, arrange for the notes from the procedure to be reviewed by an independent medical expert and advise you whether you have a claim for a surgical error injury that is worth your while to pursue. If you decide to proceed with a claim, your solicitor will compile a “Letter of Claim” and send it to the person(s) considered to be liable for your injury (1), supported by the independent medical expert´s report and inviting the negligent party to make an offer of settlement.

(1) Medical practitioners and non-medical agents (administrators, technicians, etc.) may be public employees, self-employed or work in a private medical facility. They could be indemnified by private medical insurance or covered against medical negligence* claims by the State (via the Health Service Executive).

Anaesthesia Errors during Operations

Claims for anaesthesia errors during operations are equally complicated, even though there is only once person usually at fault – the anaesthetist. Anaesthetic awareness most often occurs due to insufficient anaesthesia being delivered to a patient during a procedure but, in the majority of cases, the patient is sufficiently numbed by the anaesthesia so that they can only feel the pressure that is being applied during the surgical procedure, and not any pain.

Many patients have little or no recall of being “aware” during a surgical procedure and others may have flashbacks which develop weeks or even months after a procedure. Unfortunately, some patients will have full cognitive recollection, and will have experienced a high level of pain – but were unable to communicate their distress because they had been given a paralytic or muscle relaxing drug.

It is possible to claim compensation for surgical errors when a psychological injury develops as a result of anaesthesia errors during operations and, because a psychological injury may take many months or years to develop, it is essential you speak with a solicitor as soon as you have been diagnosed with a psychological injury due to anaesthetic awareness to ensure your claim for a negligent surgical procedure falls within the two-year Statute of Limitations mentioned above.

Provided that claims for a surgical error injury are made within the two years allowed, their resolution can be delayed until the full psychological injury has manifested, and all the consequences of the anaesthetist´s negligence can be included in a claim for anaesthesia errors during operations.

Claim for a Surgeon Piercing a Bladder

In addition to claiming compensation for surgical errors with regard to the physical and psychological injuries you sustain due to a medical practitioner´s negligence, you may also be able to claim for the “loss of amenity” you experience and the impact that an injury has on your quality of life.

A good example of this is when a claiming for a surgeon piercing a bladder during an operation such as a hysterectomy. Possibly the biggest factor that would be considered in a claim for a negligent surgical procedure is that the patient will have to wear a catheter for weeks (or longer) after the injury has been sustained.

Wearing a catheter severely restricts most people´s social life, stops them from pursuing their regular pastimes, and often results in a significant loss of income if the patient is unable to work. If you have been in the position whereby your quality of life has suffered because of an injury due to surgical medical negligence, it is recommended that you maintain a diary to record the times you were unable to attend social events or participate in hobbies – and how that made you feel.

The diary can also be used to record any financial costs you incur as result of your injury – although to recover expenses and loss of income you will have to provide receipts and previous payslips – and maintaining a diary is a good habit to get into if your injury is ongoing or likely to require revision surgery to repair at a later date.

Claims for Death during Surgery

The avoidable death of somebody close to you during surgery is a very difficult event to handle emotionally, and your solicitor will try to handle as much of the paperwork and investigation as possible without getting you involved unnecessarily.

Claims for death during surgery are supported by the Coroner´s report in addition to the evidence compiled by the independent medical expert, for although a Coroner cannot apportion blame during his investigation into the death of a loved one, his or her report can identify where the fatal mistake was made.

How much a claim for death during surgery will be settled for depends on the age and prior physical health of the victim, the circumstances of the fatal injury due to surgical medical negligence and whether or not the victim was a provider for the household. Relatives of the deceased will be eligible to claim a statutory sum for bereavement.

Unnecessary Surgery Claims

Finally, unnecessary surgery claims cover the scenario in which an error has occurred before surgery – usually a misdiagnosis. Again it may not be clear who the negligent party may be, as a doctor could have made a misdiagnosis based on a test being incorrectly performed in a laboratory, or the results of the test may have been confused by an administrator with those of another patient.

Also, although you may have undergone surgery unnecessarily, it still has to be established that you suffered an injury or the avoidable deterioration of an existing condition before you will be eligible to claim compensation for surgical errors. All of these differing factors point to the same conclusion – that you should discuss the medical treatment you received and the injury you subsequently sustained with a solicitor at the earliest practical moment.