What would be the best way to make a compensation claim for a wrong toe amputation?

Eoin P. Campbell, LL.B., Solicitor

Editor in Chief

Eoin P. Campbell

A claim for a wrong toe amputation has to be handled with professional legal representation – not only because the Injuries Board will decline applications for assessment which are related to medical negligence, but also to ensure you are adequately compensated for the consequences of having the wrong toe amputated.

Any settlement of compensation for having the wrong toe amputated has to take into account that you will still have to undergo a further operation to have the “correct” toe amputated, and that it is harder to return to a pre-operation lifestyle with two toes missing than just the one.

The two conditions of making a claim for a wrong toe amputation are effectively already fulfilled – that you have suffered a preventable injury and that the injury was attributable to the negligence of somebody who owed you a duty of care – but you will still have to go through the procedures of making a claim for wrong site amputation before your claim can be resolved.

Therefore, after having discussed the circumstances of your injury – why you were having a toe amputated, the location of the toe which should have been amputated and which toe was actually removed – your solicitor will write a ‘Letter of Complaint’ to the HSE. Although you could do this yourself, it is far better coming from your solicitor because the content of the letter will be compiled to later support your claim for a wrong toe amputation.

Your solicitor will also write to each medical practitioner involved in your surgery to request their notes from your procedure, to help understand how the incorrect amputation could have occurred. It is not always the surgeon who is negligent is such cases; as support staff or even administrators who prepared the theatre notes could have made the vital error.

The notes and any feedback from the HSE will be analysed by a medical expert to ascertain where the mistake was made, and he or she will provide your solicitor with the evidence of negligence your solicitor needs to support a ‘Letter of Claim’.

This ‘Letter of Claim’ is then sent to the hospital at which your wrong site surgery occurred – who should already be investigating your claim for a wrong toe amputation following the ‘Letter of Complaint’ to the HSE. If an admission of liability is not received in a timely manner, your solicitor will issue court proceedings against the HSE, which will usually bring them to the negotiating table to settle a claim for wrong site amputation which they have no likelihood of successfully defending.

From there, your solicitor will negotiate a settlement of compensation for having the wrong toe amputated which accounts for the physical and emotional trauma of having to undergo a second operation, the deterioration in your quality of life which the second toe amputation will undoubtedly bring and any financial expenses you have already incurred – or may incur in the future – which are directly attributable to the negligence of the medical practitioner responsible for the wrong toe being amputated.

Ideally you should speak with a solicitor as soon as possible to get the procedures of making a claim for wrong site amputation under way before you have to return to hospital for a second operation.