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Surgical claims explained

Posted: 17/01/2023

The term ‘surgical claims’ covers a wide variety of claims given surgical procedures are performed for many reasons and on various different parts of the body. Sometimes mistakes are made before, during or after surgery which can result in a medical negligence claim. This first article of the 2023 surgical series focuses on the most common types of sub-standard surgical care and when they might occur.

Pre-operative management

Many surgical claims relate to the care received before surgery has even begun. An example of this are unnecessary delays in proceeding to surgery. These can happen for a number of reasons such as a misdiagnosis or the failure to act promptly once a diagnosis has been made. As an example, if a patient is suspected of suffering from a bowel perforation, this is a medical emergency and urgent surgery is required in order to repair the bowel. If surgery is delayed, there can be significant consequences including the development of sepsis and the need for a permanent stoma bag.

Pre-operative management can also be negligent if the appropriate pre-operative investigations (eg X-rays, CT scans, MRI scans and blood tests) have not been performed or they have not been reported correctly. It is also important that they are discussed with the patient.

Appropriate pre-operative discussions are key as patients must be able to give informed consent before a surgical procedure. Patients cannot give informed consent if they have not understood all of the potential treatment options (including non-surgical alternatives) and the associated benefits and risks. 

Intraoperative care

Surgical claims also include intra-operative complications. It may be that something has gone wrong during the surgery and another part of the patient’s body is damaged such as their bladder or bowel. At times these injuries are unavoidable and not necessarily negligently caused but in certain specific scenarios such injuries are considered negligent.

Whilst some surgical procedures can be performed laparoscopically, meaning only a small keyhole is required, sometimes a larger incision is needed. Although there can be complications following keyhole surgery, wound closure issues are more common when a larger incision is made. Occasionally the incision is closed incorrectly resulting in damage to internal organs or the patient has not been given appropriate follow-up advice and their wound has re-opened shortly after surgery.

Post-operative management 

After surgery, complications may still occur and whether the incision was large or keyhole, wound care is still required. Inappropriate wound care can result in infection and, as mentioned above, the wound could re-open.

It is also important for clinicians to recognise and act upon post-operative deterioration such as post-operative bleeds and signs of infection. Sepsis can progress very rapidly and if not spotted quickly it can lead to catastrophic consequences including limb loss.

Material contribution claims

Occasionally the surgical care received by a patient is negligent, but the negligent act or omission is not the sole cause of the patient’s injury (this is common in pre and post operative infection cases). In some scenarios a surgical claim can still succeed providing it can be shown that the negligence materially contributed to the patient’s injury.

Material contribution claims can be complicated, especially in the context of surgical claims so further details will follow later in the series.

Safe discharge

At some point following surgery, most patients will be discharged from hospital. While many patients will be discharged home, others will need to be transferred to a different facility such as a rehabilitation centre or a care home.

It is important that the correct assessments are performed before discharge to ensure the patient will be safe once they have left hospital. Appropriate follow-up must also have been arranged. Failure to do so may result in a medical negligence claim.

Penningtons Manches Cooper has a specialist team of surgical negligence solicitors who deal with the full spectrum of surgery related medical negligence claims. If you think you may have a surgical claim, even if the type of claim has not been mentioned above, please do not hesitate to get in touch with a member of the team for an initial discussion.


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