Suing a surgeon

By Zoe Diss

surgeon with blue gloves holding surgical scissors

If you have suffered due to a surgical error made by a surgeon, you may be entitled to sue the surgeon (or their hospital) and make a surgical error claim for compensation.

When you suffer wrongdoing or experience an undesired result of surgery, it can understandably make you angry, and you may seek to rectify the situation by suing the surgeon responsible. If you find yourself in this situation it is important to speak to a specialist medical negligence solicitor so you can understand whether you may be eligible for compensation, whether you would be suing the surgeon or a health care organisation (the surgeon’s employer) and what the process of making a surgical error claim entails.

Can I Sue my Surgeon?

Pursuing a civil case against your surgeon is a little different to claiming criminal negligence. You must first prove that the surgeon or doctor in question has or had a duty of care towards you, although this step is usually pretty straightforward.

The next step is proving that the surgeon or doctor in question breached this duty of care, via the provision of unsafe or unsatisfactory care that may be deemed unacceptable given their level of expertise and experience. This is not always easy, but there are a number of red-flag scenarios known as “Never Events” which are recognised by health regulators as being such blatant oversites or failures in care provision that should you fall victim to them, your chances of successfully suing the surgeon responsible may be relatively high.

These are known to include the following instances:

  • Medication being administered via the wrong route or method
  • Surgery being conducted at the wrong site
  • Patients retaining foreign objects following surgery
  • Incorrect implants or prostheses being fitted
  • Misplaced naso or oro gastric tubes
  • Patients sustaining a serious injury such as scolding whilst in care

This is not intended as an exhaustive list of grounds for suing a surgeon but does give an accurate impression of the kind of blatant failures most likely to yield a successful conclusion to bringing a case. In reality, many failures to meet the required standard of care are more open to debate, which is why it is important to seek the expert advice of a Blackwater Law medical negligence solicitor.

Should your case meet the aforementioned criteria, you must also establish and prove that the breach of duty of care you suffered has produced tangible harm/damage to you in some manner. This is important to note; as civil litigation claims are not judged on the basis of wrongdoing, but on the basis of compensating losses unfairly inflicted upon the affected party. It’s easy to feel that the anger you feel towards a surgeon as a result of poor care entitles you to some sort of retribution, but unless bringing a case against them can really offer you any significant benefits litigation may not be the right course of action for you to take.

Instances of harm inflicted on patients due to substandard care that you may be able to claim for can include the following:

  • Where damage has occurred to vital organs, muscles, tendons or ligaments through an incision
  • Where surgeons have failed to observe or diagnose serious ailments during surgery
  • Where surgeons fail to respond appropriately or promptly to discovering such ailments

If you are unsure as to whether your case meets these criteria or want to know more about the process, you can contact a Blackwater Law medical negligence solicitor for free initial advice and support in relation to suing a surgeon today.

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Proving Your surgical error claim

Another important difference between bringing a civil case and a criminal one relates to the burden of proof – sometimes referred to as the “balance of probability”. Should you decide to go ahead with suing a surgeon after consultation with your Blackwater Law expert advisor you will be required to prove what probably happened and that it probably caused you harm. This essentially means it must be shown that it is more likely than not that the actions of your surgeon breached their duty of care to you, and that it is also more likely than not that this breach caused harm to you. Sometimes the balance of probability is referred to as a percentage, where you must prove that there is at least a 51% chance that the surgeon you are suing is at fault.

This is a significant difference from criminal cases, wherein it must be proven beyond a reasonable doubt that party A breached their duty of care to party B and that it is beyond any reasonable doubt that this breach of care has caused harm. The standard of proof is lower, and this is one factor that may work in your favour if you do decide to sue your surgeon.

Your Blackwater Law medical negligence solicitor will answer your questions and advise you effectively as to whether you can make a claim.

Each individual element of your case must be proven on the balance of probability, and this means securing the testimony of independent medical experts with significant experience in the field directly relating to your case. Where your case is contested in court the defence will most likely call their own expert witnesses, which means your claim must be founded on the basis of solid medical understanding and logic.

Blackwater Law medical negligence solicitors successfully represented Mrs Lockey in her claim against University Hospitals of North Midlands NHS Trust.

surgeon with instruments

Will I be Suing the Responsible Surgeon Personally?

Exactly who you are suing will depend on the circumstances surrounding your treatment.

  • If the surgeon responsible worked for an NHS hospital, you will sue the NHS Trust that oversees that hospital
  • If the surgeon is/was a private consultant at the time, you will sue them personally
  • Where the surgeon worked at a private hospital, you will sue the company that owns and operates the hospital
  • If you decide to sue your GP you will always do so on a personal basis, regardless of whether they work for the NHS or privately. In these cases, however, they will most likely be defended by their defence organisation, which will pay their legal costs and any damages the surgeon is subsequently found liable for
  • Where NHS care was undertaken at a private hospital – as is increasingly often the case – special consideration will have to be given to your case in determining who exactly is responsible for the wrongdoing you have suffered

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Will Suing My Surgeon Have an Impact on The Quality or Provision of Future Care?

No hospital or GP can refuse your treatment purely on the basis that you have sued or are suing them. It is important to understand however that doing so can affect your relationship with any doctors concerned, who may respond to the situation in different ways. You must always feel confident that the treatment/care you are receiving is being delivered to the highest standard possible, and where any doubts exist as to this it may be wise to seek referral or treatment somewhere else. Any doctors concerned also hold the right to recommend that you do so.

It’s also important to bear in mind that where you have an ongoing case against said doctor or hospital, divulging private medical information to those parties could compromise your chances of a successful outcome, making doing so ill-advised.

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Alternatives to Suing a Surgeon

In some instances, your intentions behind suing a surgeon may not be to redress losses suffered by you but to prevent others from falling victim to substandard care in future by having the person responsible struck off.

Where this is the case, one alternative to suing the surgeon is to make a formal complaint to the General Medical Council (GMC); the medical body responsible for regulating all medical practitioners in the UK. The GMC may decide to investigate your case and may contact you for further information or evidence. Ultimately, they can subject the surgeon or GP responsible to a disciplinary hearing, and in the most serious cases order that they be struck off.

If you are still unsure as to whether suing a surgeon or GP is in your best interests, contact a Blackwater Law medical negligence solicitor today for comprehensive, free initial advice and support. You could secure the compensation necessary to put your life back on track following serious medical wrongdoing.

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