If you have suffered a loss, an injury or the deterioration of an existing condition due to avoidable problems during a medical procedure, you may be able to claim compensation for surgical complications. Not all instances of surgical complications will result in a successful compensation claim for problems during surgery, and therefore we have compiled this guide to provide information that may be of interest to you prior to speaking with a solicitor.
It is always in your best interests to speak with a solicitor at the first possible opportunity to discuss the circumstances of your injuries, the consequences they have had on your quality of life and – if surgical injury claims are possible – to find out how a solicitor can help you to successfully claim compensation for injuries in surgery when you may still be recovering from a significant physical or emotional trauma.
Qualifying for Compensation for Surgical Complications
In order to qualify for compensation for surgical complications, you must have suffered a loss, sustained an injury or experienced the deterioration of an existing condition because of a mistake that was made during a medical procedure. If no injury has been sustained, or the deterioration of your existing condition would have happened irrespective of what action – or inaction – was taken during your surgery, surgical injury claims for compensation are unlikely to be successful.
Furthermore, whatever injury you sustained must have been avoidable ‘at the time and in the circumstances’, and due to the negligence of a person who owed you a duty of care and who demonstrated a lack of skill. If you have suffered an injury which could not have been prevented under any circumstances, it is again improbable that a claim for problems during surgery will be successful.
Establishing Negligence in Surgical Injury Claims
In order to establish negligence in surgical injury claims, you should first discuss with a solicitor the injury you sustained due to surgical complications during a medical procedure. Your solicitor will write to all the parties who may have been involved in the procedure and obtain any relevant notes – without making any accusations of wrong-going until such time as the notes have been reviewed by a medical expert.
In many claims for compensation for injuries in surgery, it may not have been the actual surgeon who was negligent and responsible for your injuries. If errors had been made by any of the medical team assisting the surgeon, or the notes that were provided to the medical team by administrators were incorrect, liability for your injury could be assigned to any one (or more) of a number of people.
Making a Claim for Problems during Surgery
If the medical expert believes that avoidable problems occurred during a medical procedure which could have been prevented with greater care, your solicitor will write an official complaint to the NHS Trust or private clinic in which you underwent surgery. He or she will also send a ‘Letter of Claim’ to the individual(s) involved, advising them that you are making a claim for problems during surgery and support the letter with the evidence of negligence that has been compiled.
The negligent party – or more frequently their medical insurers – has twenty-one days to acknowledge receipt of the letter and a further ninety days to inform your solicitor whether or not they accept liability for your injuries. No mention of how much compensation for surgical complications you may be entitled to is made until liability is acknowledged – at which time your solicitor will enter into negotiations with the medical insurance company to settle your claim for problems during surgery for the maximum possible amount.
Calculating Compensation for Injuries in Surgery
How much compensation for injuries in surgery you may be entitled to receive is calculated according to the nature and extent of your injury, the impact that your injury is likely to have on your health in the future and whether treatment is available to reverse the injury caused by problems during a medical procedure. Figures obtained from the Judicial College Guidelines for the Assessment of General Damages are then adjusted to account for your state of health prior to undergoing surgery, your age and – in some cases – your sex.
If your injury due to problems during surgery prevents you from completing domestic tasks, enjoying an active social life or participating in leisure pursuits that were part of your regular routine prior to undergoing the medical procedure, you can also include your ‘loss of amenity’ in surgical injury claims, along with compensation for any diagnosed psychological injury you have suffered. Any expenses you have incurred or any income you have lost which can be attributed to the mistakes made during the medical procedure can also be recovered in a claim for compensation for injuries in surgery.
Surgical Injury Claims for Children
If your child has sustained an injury or suffered the deterioration of an existing condition due to avoidable problems during a medical procedure, the procedures for making surgical injury claims are similar to the above but with a few significant variations.
Children are not allowed to make a claim for problems during surgery or instruct a solicitor until they reach the age of eighteen. Therefore a parent or guardian acting as a ‘Litigation Friend’ has to make a claim for compensation for surgical complications on the child´s behalf. The ‘Litigation Friend’ cannot be a person who has a conflict of interest – for example a medical practitioner who was present at the time of the surgery – and must be prepared to accept the financial consequences if a claim for compensation for injuries in surgery is unsuccessful.
All settlements of children´s compensation for injuries in surgery, once agreed, must first be approved by a court before the claim for problems during surgery is concluded, and are then paid into court funds where they remain until the child becomes an adult. Compensation settlements held by the court can be accessed if the child needs funds for medical treatment or educational support, or to recover any expenses the ‘Litigation Friend’ may have incurred in pursuit of their child´s compensation for surgical complications.
Time Limits in which to Claim Compensation for Injuries in Surgery
The time limits in which to claim compensation for injuries in surgery are set by the Limitations Act 1980. The ‘Statute of Limitations’ for surgical injury claims allows three years from the date an injury due to problems during a medical procedure has been identified – not necessarily from the date an injury caused by surgical complications occurred.
For example, if problems during a medical procedure resulted in an injury which was not identified for six months, the date on which the injury was diagnosed and attributed to surgical complications becomes the ‘Date of Knowledge’ from when the three-year period starts. Claims do not have to be resolved within this period, as the full consequences of an injury caused by problems during a medical procedure may not yet be apparent.
Unsolicited Offers of Compensation for Surgical Complications
It may be the case – sometimes even before you have considered making surgical injury claims – that you are approached directly by a medical insurance company with an unsolicited offer of compensation for surgical complications. Approaches such as these – sinisterly termed ‘Third Party Capture’ – are aimed at settling your claim for problems during surgery for the least amount possible in order to save the insurance company money.
If you receive an unsolicited offer of compensation for surgical complications, you should refer it immediately to your solicitor. Should you inadvertently accept the offer of compensation for surgical complications, and it proves to be inadequate to provide the medical care you require or to support your family, you cannot make further surgical injury claims to account for the shortfall.
If short-term finances are an issue for you, and you are tempted to accept the figure being offered even though it may be inadequate, speak with your solicitor. Even though the insurance company´s approach cannot be presented in court as an admission of their policyholder´s liability, it may be possible for your solicitor to organise interim payments of compensation for surgical complications until such time as your claim for problems during surgery is resolved.
If you have had Problems during a Medical Procedure…
If you have had problems during a medical procedure, and want to find out if you have a claim for compensation for injuries in surgery, the first thing you should do is speak with a solicitor. Most solicitors offer a free and confidential helpline which will enable you to establish whether you have a claim for compensation for surgical complications which is worth your while to pursue.
Whatever the nature of your injury, a solicitor will understand many of the concerns you are having right now and – although no amount of compensation for surgical complications will be able to reverse the trauma you have recently been through – your solicitor will help you to obtain a fair and appropriate settlement of compensation for injuries in surgery that will enable you to obtain the support and care you are entitled to because of somebody else´s lack of care.