When you go into hospital for an operation, you are usually advised of the risks associated with your surgical procedure. You will be made aware that you could have a reaction to the anaesthetic, suffer from blood clotting, acquire an infection or experience cardiovascular complications. These risks are inherent with any operation, but what you do not expect are surgical errors.
When you have an operation, it is reasonable to believe that the surgeon and his medical team are competent and capable of performing a surgery without surgical errors. Yet each year thousands of people sustain injuries due to surgical errors and, in the States (the Health Service Executive will not release figures in Ireland), you are seven times more likely to die while hospitalised if you have been injured during surgery.
Surgical Errors during a Procedure
Surgical errors are among the most devastating medical mistakes. Errors involving incorrect administration of anaesthetic can cause brain damage, organ failure, asphyxia, comas and even death. Incisions made in the wrong place can result in nerve damage, perforated organs and excessive loss of blood, and some surgical errors result in surgical instruments being left in a patient which can be responsible for serious post-operative damage.
Other types of surgical errors which involve surgery on the wrong part of the body, or wrong person altogether, can be traced back to poor pre-operative planning. Mistakes during surgery can be made due to the wrong information being provided to the surgeon or errors in another hospital department altogether. Irrespective of the reason for surgical errors, when these types of mistakes are made and you suffer an injury as a result, you are entitled to claim compensation for medical negligence.
Claiming Compensation for Surgical Errors
A surgical errors compensation claim not only has to show that you suffered an injury as a result of your surgeon’s or hospital’s negligence, it also has to be proven that the mistakes were avoidable at the time. Because of this second point, liability in surgical errors claims is determined by expert medical counsel, and the Injuries Board Ireland will decline any application made to them to assess compensation for surgical errors.
Your solicitor will apply for your medical records and any notes from the medical procedure in which you sustained your injury, and file a formal complaint against the negligent parties. He will also organise an independent medical examination for you in order to determine the extent of the injury and the impact it is likely to make to your future quality of life. The results of this examination will be made available to the negligent parties in the hope that they are quick to admit liability and agree swiftly to an amicable settlement.
How Much Compensation for Surgical Errors
The amount of compensation you will receive for a surgical errors claim will vary according to the extent of the injury and the length of time the surgical errors went unnoticed. You should also be able to include in your surgical errors compensation claim amounts for the pain and discomfort of revision surgery to correct the errors, and the psychological trauma you have experienced. Any out of pocket expenses or loss of earnings should also be included in a surgical errors compensation claim.
The Statute of Limitations allows you two years from the “date of knowledge” of surgical errors in which to make a claim for compensation. This is two years from the date it was discovered that surgical errors had been made, and not the date of the original operation. Children who are the victims of surgical errors have two years from their eighteenth birthdays in which to make a claim for surgical errors compensation, or can do so when they are still minors through a parent or guardian acting as their “next friend”
Surgical Errors Litigation
Rarely does a claim for surgical errors compensation get litigated in court. In most cases liability will have been agreed before a case goes to court, although a court appearance may still be necessary if the amount of compensation has yet to be agreed. In cases involving surgical errors to children, any compensation settlement will have to be approved by a judge before payment can be made.
- Surgical errors are responsible for a nigh number of post-operative fatalities in hospital and re-admissions for revision surgery.
- Surgical errors can be made by a surgeon, an anaesthetist, any of the medical team present during surgery, or be caused by mistakes made in other hospital departments.
- Claims for surgical errors compensation have to show that the errors made were avoidable at the time in order to be successful
- The Injuries Board Ireland will not assess your claim for surgical errors compensation, as judgement relies on medical opinion rather than hard fact.
- The procedure for claiming surgical errors compensation is designed in order that your solicitor can compile the strongest possible claim and effect a quick settlement.
- Children under the age of eighteen have to be represented by a parent or guardian, and any compensation settlement has to be approved in court before payment can be made.
Surgical errors can have life-changing consequences and, if you have been injured during a surgical procedure due to the negligence of a surgeon or hospital, you should discuss the points raised in the above article with a solicitor at your earliest opportunity.
It is important to note that each case is unique. If you have been unfortunate enough to have suffered surgical erros and feel that you have a potential injury claim, you are advised to discuss all of the points raised in the preceding article with a solicitor at the earliest opportunity.
Copyright © 2009-2019 Eoin Campbell
About the Author
Eoin P. Campbell is an honours law graduate (LL.B) and qualified solicitor whose professional experience is in the area of litigation and in particular personal injury claims. Eoin P. Campbell is currently lecturing in law at two universities in Lyon, France.