Surgical error compensation
Having to have surgery for most people can be a necessary but stressful experience. If you need surgery, it’s usually to treat something that’s affecting your health and it’s important for your recovery. However, what happens when that surgery has complications or the procedure goes wrong because of failings which could have been avoided.
For a small number of patients every year this is sadly a reality. They find out that something has gone wrong during surgery which has caused them harm and they need answers as to why this happened.
If you or a loved one has experienced an injury due to surgical negligence then it is important you know the options available to you. This is where we can help. Our team of dedicated solicitors can offer you the best advice on what steps you should take.
Even if unexpected things happen during the surgery there are still steps that should be followed, however proving the surgeon was negligent can be difficult.
It is necessary to have your records examined by an independent surgical expert to establish whether the surgeon has done something which no other surgeon would have done. If the expert looks through the medical records and identifies something they believe a competent surgeon would not do or believes the quality of the surgeon’s actions or decision making fell short of typical surgical standards, then it can help prove your case.
What type of surgical errors can I claim for?
While all surgery carries a degree of risk, some damage or injury to patients should simply not occur. Every patient deserves the very highest quality of care, however sometimes errors happen during surgery. Some of the more common operative errors we see include:
Operating on the wrong part of the body - this typically happens due to a breakdown in communication between medical personnel, or a lack of attention to detail prior to surgery commencing. Regardless of how it occurs, it should never happen.
Performing an unnecessary operation - if you had surgery which you later find out was either not needed in the first place or was the wrong procedure, you may be able to make a claim.
Damaging other parts of the body during surgery - while there is a recognised risk that there can be damage to nearby organs, nerves and tissue during an operation, there may be certain situations where the damage should not have happened.
Lack of post-operative review - it is normal for your surgeon to talk with you after your procedure to let you know what happened and check on how you are feeling now. Nursing and medical staff will be involved in monitoring you post-operatively to make sure that your recovery goes to plan. If there is a failure to properly monitor you, or a failure to escalate any concerns about your recovery and your condition deteriorates then you may be able to claim if this causes you harm.
Foreign objects left inside your body - if it turns out you had swabs or other pieces of equipment left inside you after a procedure, this is known as a “never event”. It is something that should never happen. You are entitled to pursue a claim for compensation if this has happened to you and caused harm.
How do I make a claim?
The process of making a surgical negligence claim can be overwhelming, but understanding each step can make it more manageable. We need to determine if we can pursue the claim on your behalf. To do this we will carefully review the available information including:
Significant Adverse Event Review (SAER)
This review aims to identify any underlying causes or system failures that may be linked to the injury/cause of death.
Complaint Response from the Medical Profession
After you submit your complaint to the NHS health board you will need to receive a response from them. You must file your complaint before we can proceed with a clinical negligence inquiry as this will help your case move forward.
Once we have reviewed this information we can investigate what happened, identify what went wrong and provide initial advice on whether you have a strong enough case for negligence. However please note that we cannot take on every case we review.
We can only act if the alleged negligence happened in Scotland, however Digby Brown has an experienced Foreign and Travel department who may be able to help. Get in touch with us today for free initial legal guidance.
If you have been affected by a surgical error in Scotland and would like to talk to a specialist about a clinical negligence claim, in the first instance please fill out our clinical negligence enquiry form. Please give as much detail as you can as this will assist in our ability to fully understand your circumstances and offer legal advice.
Firstly, be sure to take time to recover and go through the internal NHS complaint processes. As soon as you can seek legal advice you should. Getting legal support early reduces the risk of evidence going missing over time or the memory of witnesses becoming less accurate.
A parent can claim on behalf of a child under 16-years-old. As soon as the child turns 16 the three year time bar starts. This means they would have until they are 19-years-old to either settle a claim or raise a court action to protect their position.
Here to help you
Our clinical negligence team at Digby Brown is here to support you. We have assisted many individuals over the years and offer free initial legal guidance. As with all personal injury cases, the precise circumstances will be assessed on a case by case basis.
If we're able to take on your case we will guide you through each step and are here to answer any questions you may have. Our goal is to make this process as easy and comfortable as possible for you.
No win, no fee personal injury solicitors
The expression “No win, no fee” is often used in personal injury cases. It is used as a way of funding a compensation claim where the accident victim does not have the means to pay for the costs involved as the case progresses.
A number of solicitors are prepared to handle personal injury cases on a “No Win – No Fee” basis but very few are able to offer their clients complete protection if the case is unsuccessful.
In that event, the client could end up being liable for many thousands of pounds in legal expenses or the case won't be fully investigated and therefore likely to under-settle.
Compensate 'no win, no fee' funding
Digby Brown has its own funding company, Compensate, which provides the funding to allow the case to be fully investigated, employ the best experts surrounding the circumstances of the accident and/or injuries sustained and where and if necessary go to court.
If for whatever reason the case is unsuccessful, Compensate pays all your legal expenses and those of your opponent – you pay nothing.
On average our clients receive over 3 times the pre-litigation offer
Because of Compensate funding Digby Brown's success rate is extremely high and on average our clients receive three times the pre-litigation offer.
In the event the case is successful, a small percentage of your damages will be deducted with VAT to pay for this service. The percentage which Compensate will charge depends on the degree of risk involved. We believe that this is the fairest method of giving clients access to justice whilst ensuring their cases are fully investigated, prepared and funded.
Don’t take our word for it, just read many of the court decisions and case studies on our website.
Beware of compensation offers which may be too good
We know you will have seen many adverts offering 100% compensation or telling you that you will not lose any of your compensation, however we believe there are a number of problems with companies that do this.
- How do they make their money if they don’t charge you anything?
- If they aren’t taking any money from you, the client, what incentive do they have to ensure you receive the right level of compensation, appropriate to the injuries you have sustained?
- Fully preparing a case, finding out exactly what happened and what the consequences of your injuries may mean in the long term, is expensive, how do they do this properly?
- If they aren’t fully preparing these cases will they just accept the first offer they are given on your behalf by the Insurance company?
- It makes simple business sense, the less work they do the higher their profit margin is - they simply have no incentive to work harder on your behalf.
- These adverts in the main are from English firms on national television which operates in a different way and therefore wouldn’t apply to a Scottish person.
We know from the many client cases we mandate from other firms of solicitors (in the main at the request of the client who is extremely unsatisfied with the service received for the other firm) that many shortcuts are taken in preparation and that the first offer received is being recommended for acceptance, regardless of the value.
Getting something for nothing is usually the first sign of poor service.
Correct level of compensation with Digby Brown
Our experience and statistics show time and time again we will achieve the correct level of compensation which will be substantially more than the insurer is initially prepared to offer.
Even after we have deducted our percentage as a success fee you will gain considerably more than you would have achieved using a 100% compensation model.
Contact Digby Brown's personal injury solicitors
We have offices across Scotland in Glasgow, Edinburgh, Dundee, Kirkcaldy, Inverness, Aberdeen and Ayr.
For further information about no win, no fee, or anything else, call us on 0333 200 5925 or fill in our enquiry form below and someone will get back in touch with you.
Why choose Digby Brown?
Our clinical negligence department is headed by Ruth Kelliher, Partner, along with her colleague, Partner Trish McFadden. Both solicitors are acknowledged as specialists in clinical negligence by the Law Society of Scotland and the Chambers Legal Guide.
As proud members of Action Against Medical Claims (AvMA) and with many of the clinical negligence team being accredited by the Law Society of Scotland, we are here to provide you with the guidance and support you need during these challenging times. We understand the difficulties you may be facing, and we are here to help you every step of the way.
FAQs
We understand you may have questions about surgical errors – here are some of the most common ones we get asked.
Can I claim for a surgical ‘never event’?
A never event refers to preventable errors occurring during surgery or while under medical care. These incidents are reviewed individually, and action may be taken if causation is established.
Who can I claim against?
We would claim against the relevant health board of an NHS hospital, or if it was a private clinic we would claim against the individual surgeon who was negligent.
What will happen when I make a claim?
The health board will pass details of your claim to their solicitors. They will carry out their own investigations with experts before confirming the health board’s position on liability (accept fault or not).
How long do cases take to settle?
No two cases are the same. Clinical negligence cases are complex and rely upon independent expert opinion. We will try to pursue the claim as quickly as possible but most cases will take several months and even years to settle. Many surgical negligence cases will need to be litigated in court to achieve a settlement which adds to the time it takes to resolve these cases.
How much compensation can I claim for?
We can never predict how much compensation you may be able to claim. However we will pursue a claim for the pain and suffering you have gone through as well as claiming for any wage loss which you would not have sustained but for the negligence. We are also entitled to claim for help you received from family members as a result of delayed recovery due to the negligence.
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