Can You Claim Compensation for a Surgical Error?

Patients often ask if they can make a surgical error claim if something goes wrong during an operation. No surgical procedure is 100% risk-free, but patients have a right to expect that surgeons, anaesthetists, and staff will uphold a high standard of care. If you or someone you love suffered injury due to a surgical error, you may be entitled to compensation.

Henry Carus + Associates handle surgical negligence claims in Melbourne and throughout Victoria. Our goal is to pursue maximum compensation on your behalf while providing care and guidance throughout the course of your recovery and your legal claim.

Find out if you have a viable surgical error claim and the legal options available to you. Call Henry Carus + Associates at 03 9001 1318 today for a FREE, no-obligation consultation.

What Is a Surgical Error?

A surgical error is defined as an unintentional act that causes preventable harm to a patient. Surgical errors may occur prior to surgery, during the procedure, or shortly afterwards when the patient is receiving post-operative care.

Examples of surgical errors include:

• Wrong-site surgeries: Operating on the wrong part of the body (e.g., operating on the wrong level of the spine).
• Negligence during surgery: Carelessly damaging blood vessels, tissue, nerves, organs, etc.
• Wrong-patient surgery: Performing an operation on the wrong patient.
• Delayed surgical intervention: Failure to perform surgery when it is medically necessary or clinically indicated.
• Retained foreign bodies: Examples of retained foreign bodies include sponges, needles, clamps, retractors, etc. Leaving these inside a patient can lead to serious infection.
• Anaesthesia errors: Improper administration of anaesthesia, failure to monitor the patient, and giving an incorrect dose can have serious repercussions.
• Negligence in infection control: Operating rooms and surgical equipment need to be kept sterile, and patients must be closely monitored for signs of infection post-surgery. Errors in either of these aspects can lead to infection, septicaemia, and other complications.
• Failure to warn: Patients have a right to be informed of the risks of a procedure, and providers are required to obtain informed consent. Failure to explain the risks and/or get the patient’s informed consent may constitute negligence on the part of surgeons and hospital staff.
• Unnecessary surgeries: Not every surgical recommendation is in the patient’s best interest. Surgeons may be held liable if an injury or complication results from an unnecessary surgery.

Surgical errors are generally considered a form of medical negligence. Victims of surgical errors may be able to bring claims against the practitioners responsible for the injury, as well as the hospital or facility.

What to Do When an Operation Goes Wrong

Even if everything goes right, some surgeries involve a long and difficult recovery. When an operation goes wrong, the recovery can be even more difficult and fraught with challenges.

Victims of surgical negligence may experience a worsening of the injury or illness for which they underwent surgery in the first place. They may also suffer temporary or permanent injuries that limit their mobility or day-to-day functioning, cause extreme pain and psychological distress, and affect their ability to make a living. They also may require further revision surgeries to fix the initial error.

Here is what you should do if you suspect the surgery was not at the required standard:

1. Get Medical Attention Immediately

If you experience an injury or complications in the hospital, you should receive immediate treatment from the staff (if not, that’s potentially evidence of further negligence). Call 000 or go to the nearest hospital if you experience complications whilst you’re recuperating at home or out and about.

2. Follow Up with Your Doctor

Once your injuries are stable and you’re released from hospital, you should see your G.P. as soon as possible. You may be referred to one or more specialists, physical therapists, and other practitioners. It is crucial to keep up on your care following a surgical injury or complications, both to document your condition and protect your legal rights.

3. Document the Surgery and the Aftermath

Thorough documentation is critical following a suspected botched surgery. Your records should include:

• Notes about the condition that required surgery, including symptoms, diagnosis, test results, etc.
• Communications with the surgeon and staff, including notes from your initial meeting or consultation, surgical recommendations, conversations about alternatives (if they were presented to you), etc.
• Intake forms, consent agreements, and other documents
• All medical records—before, during, and after surgery
• Records of symptoms you experienced and treatment you received for complications or an adverse outcome
• Communications with doctors and hospital staff regarding the surgical error
• Medical bills and invoices
• Proof of lost wages and future earnings

4. Consult a Specialist Lawyer

Surgical error claims are complex. It is important to consult a knowledgeable lawyer with the experience, resources, and expertise to represent you effectively and maximise your compensation.

5. Focus on Your Recovery

The physical effects of a surgical error are often exacerbated by a sense of unfairness and injustice. Had the surgeon done what they were supposed to do, you might not be in this painful, life-altering situation. Once you have legal counsel, your lawyer can focus on the intricacies of your surgical error claim while you dedicate your time to getting better.

Do I Have a Claim?

There are several conditions you need to meet when claiming compensation for a surgical error.

First and foremost, your claim must be brought within the limitation period. In Victoria, the general limitation period for personal injury claims is 3 years from the date the injury is discovered. Additional time may be allotted if the injury is discovered at a later date, but Victoria law imposes a long-stop limitation of 12 years.

Second, you need to prove that the error was the result of negligence. You will need to show:

• The surgeon failed to exercise the reasonable degree of care expected of a practitioner with his or her skill.
  AND
• The error caused you harm, whether by exacerbating an underlying condition or further injuring you.

Not all surgical procedures go to plan. Patients may experience unfavourable outcomes despite the best efforts of their surgeons and staff. In these cases, the injury would likely not be compensable because the surgical staff upheld the standard of care. The same goes for simple mistakes during surgery, which may not rise to the level of negligence.

A lawyer experienced with surgical negligence claims will examine the conduct of the surgeon, anaesthetist, nurses, and other staff involved in your care. Lately, we are finding that many surgical error claims originate from issues prior to surgery—such as surgeons taking on too many patients and doctors performing procedures for which they are unqualified. Our team is prepared to investigate all aspects of surgery for signs of negligence, from the initial evaluation to the operation to aftercare.

Compensation for Surgical Negligence

You may be entitled to compensation for a surgical error if a medical practitioner’s negligence caused you injury. Damages you may be entitled to include:

• Medical expenses subsequent to the botched surgery
• Loss of earnings
• The cost of household services, assistive devices, and other care and supports
• Medical-related travel expenses
• Loss of future earnings and earning capacity
• Pain and suffering
• Loss of enjoyment of life

A medical negligence lawyer can collect the evidence necessary to prove the surgeon’s error, establish the seriousness of your injuries, and claim all of the damages you are due. Testimony from expert witnesses is essential for showing that the actions of the health care provider deviated from the standard of care and caused your injury.

Surgical negligence claims often involve going up against large public or private hospitals, as well as insurers determined to pay you as little as possible. The majority of claims are resolved via settlement—typically through negotiations and mediation—but it may be necessary to go to court.

Get Expert Help with Your Surgical Error Claim

When consenting to surgery, we expect providers and facilities to uphold high professional standards. Unfortunately, surgical negligence can lead to devastating outcomes for patients and their families.

At Henry Carus + Associates, we believe You Deserve More. In addition to specialising in medical negligence claims, we provide compassionate and supportive assistance based on your individual needs. Our lawyers work to maximise your compensation while you focus on your recovery.

We take your surgical error claim on a No Win – No Fee basis. You pay no upfront costs and only pay a fee if we obtain a favourable result on your behalf.

Contact Henry Carus + Associates Today

Qualified legal counsel is essential for pursuing compensation after a surgical error. Call 03 9001 1318 for a FREE, no-obligation consultation. Henry Carus + Associates serve clients in and around Melbourne and all of Victoria.