Surgical Negligence Claims

Surgical negligence occurs when a surgery is not performed to an acceptable standard, either due error or a substandard level of professional skill, and the result is a direct, negative impact on a patient’s condition.

Patients are legally entitled to expect a certain standard of care when they undergo surgery. If their surgeon fails to meet that standard, there may be grounds for a surgical negligence case.

Cases of surgical negligence can be hugely impactful. Not only can errors in surgery leave a patient experiencing intense, unnecessary pain – in some cases, surgical malpractice can have severe implications on a person’s long-term standard of life.

In all Irish cases of medical negligence, the basis for any compensation claim relies on proving:

As soon as those facts are established, a solicitor can go about sourcing an independent third-party to conduct an independent medical review of your treatment.

A decision can then be made, on the balance of probability, as to whether the surgeon’s actions were unreasonable enough to constitute surgical negligence.

A patient is deemed to have given informed consent when they are briefed on all the important information relating to their treatment, including the potential risks, benefits and side effects, and they decide to undergo the procedure.

The majority of surgeries carried out in Ireland are vital and unavoidable, meaning a rational adult should be willing to risk the minor complications that can arise with any form of surgery in the face of more significant personal injury that could come from inaction.

Given the necessity of those types of treatment, informed consent can sometimes be ambiguous. General consent, for instance, occurs when a patient tells their practitioner to carry out whatever treatment they deem most appropriate.

Implied consent means not specifically ruling out a procedure or form of treatment. It can arise in the event of complications during surgery, where a quick decision is needed, and the patient cannot be consulted.

Family members do not have a legal right to give or withhold consent for any form of treatment, although they can sometimes be consulted by a practitioner.

The exception to this is with children – parents or guardians are consulted ahead of surgeries for children under the age of sixteen, although, in Ireland, the child’s own view is also often taken into account.

Children aged sixteen and above may grant informed consent themselves to any surgical procedure they undergo, without the consent of a parent or guardian.

If avoidable complications arise as a result of an improper surgery, and the patient was not properly informed on the potential risks that went with their procedure, there may be the basis for an informed consent surgical negligence claim.

Because of the implications associated with refusing treatment for a major ailment, it can be difficult to prove that you would not have gone ahead with your surgery had you been fully aware of its potential drawbacks.

Still, with the likes of cosmetic surgery, where the procedure is entirely elective, it can happen that an unanticipated side effect presents a significant impairment for the patient. In that instance, if informed consent was not given, surgical negligence may have occurred.

There may also be situations in which a surgeon is more confident in surgery as the best course of action, even though another, more conservative treatment plan may actually be more appropriate.

Laser treatment, for instance, has made major strides in recent years and can present fewer risks than a surgical procedure with a similar purpose.

Surgical negligence can occur across all forms of surgery but some of the more common procedures that can present grounds for a negligence claim include:

Generally speaking, any error in surgery is at risk of forming the basis for a surgical negligence case. Mistakes or malpractice can happen in a wide range of settings, and if you feel as though you have been the victim of medical negligence, feel free to get in touch with Hughes & Associates for a full assessment of your case.

To give an idea of some of the more common cases of surgical negligence, below is a list of examples: