If you have suffered a loss, an injury or the deterioration of an existing condition due to mistakes made by a doctor during a surgical procedure, you may be able to claim compensation for surgeon medical negligence. Not all instances of injuries on the operating table will result in a successful compensation claim for negligent surgical treatment, and therefore we have compiled this article to provide information that may be of value to you prior to speaking with a solicitor.
It is always in your best interests to speak with a solicitor at the earliest practical opportunity when you believe you have sustained an injury due to a surgeon´s medical negligence in order to discuss the circumstances of your injury, the consequences it has had on your quality of life and – if negligent surgery injury claims are possible – to find out how a solicitor can help you to successfully claim compensation for an injury in surgery when you may still be recovering from a significant physical or emotional trauma.
Qualifying for Compensation for Surgeon Medical Negligence
In order to qualify for compensation for surgeon medical negligence, you must have sustained an injury, suffered a loss or experienced the deterioration of an existing condition because of a mistake that was made during a surgical procedure. If no injury has been sustained, no loss suffered or the deterioration of your existing condition would have happened irrespective of what action – or inaction – was taken by your surgeon, negligent surgery injury claims for compensation are unlikely to be successful.
Furthermore, whatever injury you sustained must have been preventable ‘at the time and in the circumstances’, and attributable to the negligence of a doctor who owed you a duty of care and who demonstrated a lack of skill or poor professional performance. If you have suffered an injury which could not have been avoided under any circumstances, it is again improbable that a claim for negligent surgical treatment will be successful.
Establishing Liability in Negligent Surgery Injury Claims
In order to establish liability in negligent surgery injury claims, you should first discuss with a solicitor the injury you sustained and why you believe it may be due to medical negligence. Your solicitor will write to all the parties who may have been involved in the surgical procedure and obtain any relevant medical notes – without making any accusations of medical negligence until such time as the notes have been reviewed by a surgical expert.
The reason for writing to all potential parties is that, in many negligent surgery injury claims for compensation, it may not have been the actual surgeon who was negligent and liable for your injury. If mistakes had been made by any of the medical team assisting the surgeon, or the notes that were supplied to the medical team by hospital administrators were incorrect, liability for your injury could be assigned to any one (or more) of a number of people.
Making a Claim for Negligent Surgical Treatment
If the surgical expert appointed by your solicitor believes that preventable mistakes occurred during a procedure which could have been avoided with greater care, your solicitor will send an official complaint to the NHS Trust or private clinic in which you underwent surgery. He or she will also write a ‘Letter of Claim’ to the individual(s) identified as negligent, advising them that you are making a claim for negligent surgical treatment and support the letter with the evidence of negligence that has been compiled by the surgical expert.
The negligent party – or more commonly their medical insurers – has twenty-one days to acknowledge that they have received the ‘Letter of Claim’ and a further ninety days to inform your solicitor whether or not they concede liability for your injuries. No mention of how much compensation for surgeon medical negligence you may be entitled to is made until liability is accepted – at which time your solicitor will enter into negotiations with the medical insurance company to obtain the maximum possible settlement of compensation for an injury in surgery.
Calculating Compensation for an Injury in Surgery
How much compensation for an injury in surgery you may be entitled to receive is calculated according to the nature and permanence of your injury, the impact that your injury is likely to have on your health in the future and whether treatment is available to remedy the injury caused by your surgeon´s medical negligence.
Figures obtained from the Judicial College Guidelines for the Assessment of General Damages will be used to calculate a “base” entitlement to compensation, which will then be adjusted to account for your state of health prior to undergoing surgery, your age and – in some negligent surgery injury claims – your sex.
If your injury prevents you from performing domestic tasks, enjoying an active social life or participating in leisure pursuits that were part of your regular schedule prior to undergoing the surgical procedure, you can also include your ‘loss of amenity’ in negligent surgery injury claims, along with compensation for any diagnosed emotional trauma you have suffered. Any financial costs you have incurred, or any earnings you have lost which can be attributed to the mistakes made by your surgeon, can also be recovered in a claim for negligent surgical treatment.
Negligence Surgery Injury Claims for Children
If your child has sustained an injury, a loss or the deterioration of an existing condition due to avoidable mistakes during a surgical procedure, the procedures for making negligent surgery injury claims for children are similar to the above but with a few significant differences.
Children are not allowed to make a claim for negligent surgical treatment or instruct a solicitor until they reach eighteen years of age. Therefore a parent or guardian acting as a ‘Litigation Friend’ has to make a claim for compensation for surgeon medical negligence on the child´s behalf. The ‘Litigation Friend’ cannot be a person who has a conflict of interest – for example a father who operated on his son – and must be prepared to accept the financial consequences if a claim for compensation for an injury in surgery is unsuccessful.
All settlements of compensation for an injury in surgery to a child, once agreed, must first be approved by a court before the claim for negligent surgical treatment is concluded. They are then paid into court funds, where they remain until the child becomes a legal adult. Compensation settlements held by the court can be withdrawn on application to the court if the child needs funds for medical treatment or educational support, or to recover any expenses the ‘Litigation Friend’ may have incurred while taking care of the injured child.
Maximum Time in which to Claim Compensation for an Injury in Surgery
The maximum time in which to claim compensation for an injury in surgery is set by the Limitations Act 1980. The ‘Statute of Limitations’ for negligent surgery injury claims allows three years from the date an injury due to a surgeon´s medical negligence has been identified – not necessarily from the date the injury happened.
For example, if an injury sustained during a surgical procedure was not identified for three months, the date on which the injury was diagnosed and attributed to surgical negligence becomes the ‘Date of Knowledge’ from when the three-year limitation period starts. Negligent surgery injury claims do not have to be resolved within this three-year time limit, as the full consequences of an injury sustained during a surgical procedure may not always be apparent.
Unsolicited Offers of Compensation for Surgeon Medical Negligence
It may be the case – sometimes even before you have considered making negligent surgery injury claims – that you are approached directly by a medical insurance company representing the negligent party with an unsolicited offer of compensation for surgeon medical negligence. Approaches such as these – termed ‘Third Party Capture’ – are aimed at settling your claim for negligent surgical treatment for the least amount possible in order to save the insurance company money.
If you receive an unsolicited offer of compensation for an injury in surgery, you should refer it immediately to your solicitor. Should you inadvertently accept the offer of compensation for surgeon medical negligence and it proves to be inadequate to provide the medical care you or your child require, or to support your family while you are unable to work, you cannot make further negligent surgery injury claims to account for the shortfall.
If short-term finances become a concern for you, and you are tempted to accept the offer even though it may be inadequate, speak with your solicitor. Even though the insurance company´s approach cannot be used in court as an admission of their policyholder´s negligence, it may be possible for your solicitor to organise interim payments of compensation for surgeon medical negligence until such time as your claim for negligent surgical treatment is resolved.
Further Advice on Making a Claim for Negligent Surgical Treatment
If you believe you have sustained a loss, an injury or the deterioration of an existing condition due to a surgeon´s medical negligence, and wish to discover if you have a claim for compensation for an injury in surgery, the first thing you should do is speak with a solicitor. Most solicitors offer a free and confidential telephone service which will enable you to establish whether you have a claim for compensation for surgeon medical negligence 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 surgeon medical negligence will be able to reverse the trauma you have recently been through – a solicitor can help you to obtain a fair and appropriate settlement of compensation for an injury in surgery that will enable you to obtain the support and care you are entitled to because of somebody else´s negligence.