Clinical negligence surgical claims
Produced in partnership with Aneurin Moloney of Hardwicke
Clinical negligence surgical claims

The following PI & Clinical Negligence guidance note Produced in partnership with Aneurin Moloney of Hardwicke provides comprehensive and up to date legal information covering:

  • Clinical negligence surgical claims
  • Inherent risks
  • Issues and risks in surgery generally
  • Orthopaedic surgery
  • Spinal surgery
  • General surgery
  • Never events
  • Professional guidelines
  • Consent and emergency procedures
  • The surgeon
  • more

Across the spectrum of clinical negligence cases between those involving issues of ‘pure diagnosis’ and ‘pure treatment’, claims arising out of negligently performed surgery invariably fall towards the pure treatment end. This will likely be the case notwithstanding that a surgical procedure is usually intended to be diagnostic rather than therapeutic.

This means that the acts or omissions giving rise to the complaint will be considered through ordinary Bolam and Bolitho principles.

See Practice Note: Duty of care and breach in clinical negligence claims.

Inherent risks

Any surgical procedure carries a number of inherent risks. Some risks are present in all surgical procedures. Other risks are inherent to the particular operation that is being performed. For a discussion of risks specific to cosmetic surgery, see Practice Note: Cosmetic surgery claims.

The first step in the surgical process is usually anaesthesia. Dental damage by the laryngoscope blade is a common source of claims arising out of the actions of anaesthetists. Teeth with caps or crowns tend to be those most at risk. Expert opinion generally concludes that such damage falls below an acceptable standard of treatment, however, injuries arising out of these errors tend to be minor.

Failures to achieve anaesthesia, and overdoses of anaesthesia are rare, but usually result in a finding or admission of negligence.

The positioning of a patient during surgery is recognised