Can You Receive Compensation for Surgical Errors?

When you have surgery, the last thing you want to find out afterward is that your doctor made a surgical error. It’s estimated that 1 out of 9 Australians who enter the hospital have a complication, and surgical events are at or near the top of the list annually for the type of preventable “sentinel” event that caused serious patient harm or death. 

If you’ve been subject to a surgical error due to medical malpractice or surgical negligence, you may be entitled to compensation. At Gerard Malouf & Partners, our medical malpractice lawyers can help you make your case and represent you in a settlement or court appearance. All you have to do to start the process is meet with an experienced medical negligence lawyer to discuss your claim.

What is surgical negligence?

Surgical negligence is a subset of medical negligence, which means a practitioner failed in their duty of care. Surgical negligence is considered different from surgical errors that happen in the midst of an emergency. 

Most surgical negligence cases arise from routine operations during which the surgeon failed to follow correct protocols that any surgeon could reasonably be expected to follow. In most cases, surgical negligence comes to light when a patient has to have additional surgery or becomes severely ill due to the action or inaction of the surgeon. 

Victims of surgical errors can sue for their additional medical costs, loss of income and superannuation if the negligence resulted in an injury that kept them from working, and additional compensation if the negligence caused them to become disabled, disfigured, or left them with a chronic condition. 

Common types of surgical error

There are many different types of surgical errors. Not all errors arise from negligence. The type of surgical error that is grounds for compensation is an error that causes harm and that could have been avoided if the medical practitioner had acted with the same level of care any of his or her peers could have been expected to in the same situation. If they did not, they can be seen to have failed in their duty of care toward a patient, and if harm resulted, they can be held culpable.

The most common types of surgical errors are typically in one of the following categories:

Performing an operation on the wrong body part

There is a reason the doctor puts a large mark on the part of the body to be operated on. This is to prevent surgery from being done on the wrong part of the body. In standard operations, this should prevent such an accident from happening. If the surgeon doesn’t pay attention and operates on the wrong body part, when they could have easily avoided it, that is surgical negligence. 

Performing an unwanted or unnecessary surgery

Likewise, a surgeon who performs an unnecessary surgery or one that is unwanted and that was not consented to (except in cases to save a patient’s life) can be classified as negligence. An example would be a doctor performing a procedure to remove a single ovary and taking both ovaries out for no reason.

Using inappropriate surgical practices that cause infection

Postoperative infections are unfortunately all too common in hospitals thanks to superbugs. However, if the infection was caused by a surgeon using a contaminated instrument or another failure in proper surgical practice, they can be held accountable. 

Not satisfactorily completing the surgical procedure

If a surgeon doesn’t correctly finish the procedure, such as leaving a wound improperly or inadequately stitched, this can cause harm to the patient and can be surgical negligence.

Leaving surgical tools or material inside the patient

This is almost a running joke on television programmes but it does happen. A doctor in a hurry to close can miss a sponge or a small clamp inside the patient which can cause a severe infection or damage to an organ. Surgical error compensation would almost certainly be awarded in such cases.

Causing unnecessary damage or disfigurement during surgery

A careless surgeon who causes damage or disfigurement, whether by improper handling of a scalpel or any other reason, can be held to account for the injury caused. This includes damage to another body part, such as damaging one organ while working on another.

Failure to provide the patient with adequate warning

Patients need to know about any and all risks associated with the surgery so they can make an informed decision. If a doctor performs a surgery and doesn’t tell the patient that the result could be limited mobility or infertility, for example, a surgical error claim might be made.

Wondering if you can still file after many years have passed? Even if you don’t find out about a surgical error until years later, you may still have a claim based on what kind of error it was and what kind of injury has been caused. 

Most time limits for filing start when you’re made aware of the problem, not when the error occurred, since you could go for a decade or more not knowing a mistake has been made or effects are slow to appear.

Negligence vs. medical malpractice

Medical negligence assumes that the surgical error was completely unintentional, a result of negligence rather than malice or putting the practitioner’s best interest above the patient. Surgical negligence cases tend to be fairly straightforward and may settle quickly out of court.

In cases of medical malpractice, it’s being assumed that that the practitioner knew they were failing the standard of medical care, and simply proceeded anyway, or even worse — that they deliberately committed errors in order to benefit themselves, such as placing an implant they knew to be faulty because they own stock in the company that makes the implant.

It can be much harder to prove medical malpractice than surgical negligence. Unless you think your doctor deliberately put you in harm’s way, you likely have a negligence claim and not a malpractice claim. Hiring a medical malpractice attorney or a medical negligence solicitor is appropriate in either case. 

A personal injury lawyer from Gerard Malouf & Partners can help you get the compensation you deserve. We have the knowledge and the resources to successfully bring your claim, and we work on a no-win, no-fee basis so you won’t owe any legal fees until you receive your settlement or award.

Gaining compensation for a botched surgery

Finding out that you have been the victim of surgical negligence can be a shock. Hopefully, your health has not been terribly endangered by the fact that a medical practitioner was careless with your body. However, if you have suffered any sort of harm, including psychological harm, as a result of the negligence, you are entitled to compensation. 

The first thing you should do is gather as much documentation as possible about your entire medical history. You’ll need to request all of your medical records from different doctor offices and hospitals and clinics where you have received care. Make a file with printouts of all of these documents to give your medical negligence solicitor. 

Pull and make copies of all documentation related to your current situation, starting from the health complaint that led you to the practitioner who was negligent. Also ask people you know who can vouch for your state of health prior to the negligence to provide written testimony to that effect. 

All of this information can be provided at your appointment with your personal injury attorney. During your consultation, we go over this file and determine if you have a valid case for compensation. We can tell you if you should lodge for surgical negligence, medical malpractice, and tell you how much you’re likely to get in the way of personal injury compensation including any settlement for pain and suffering. 

How much is a surgical negligence compensation claim worth?

You have a right to claim the following compensation:

The immediate costs of remedial treatment. This includes initial visits to a hospital and any specialist treatment related to your injuries due to the surgical negligence. 

Ongoing medical costs associated with your condition or injuries, including long-term or lifetime treatments such as at-home care or physical therapy

Economic damages for inability to work, lost wages and superannuation, both now and in the future, particularly if you have a whole or partial permanent disability as a result of the negligence. 

Non-economic damages for pain and suffering, including both physical and psychological distress; this is typically a lump sum paid out in cases of disfigurement, extreme psychological damage, loss of reproductive or sexual capability, or a whole body disability percentage of 10-15% or more. 

Depending on the circumstances of your case, we may be able to settle it through mediation, meaning the hospital or insurer will offer you a settlement. In most cases, the first offer is very low. We will negotiate and submit evidence to show the validity of your claim. The Court prefers most cases to be settled via mediation to reduce stress on the system.

However, even if you have a clear case, the defendant may be unwilling to offer a fair sum. In such cases, we can take your claim to the Court and will see the case through to win you an award. You deserve compensation for your personal injuries due to surgical negligence, and we are committed to helping you win your claim. 

Have you or a loved one been victimised by a surgical error that has caused you personal injury? We are one of the largest compensation claims specialists in Australia, winning over $4 billion for our clients.  Please contact Gerard Malouf & Partners today for no-obligation legal advice about your claim.