How To Claim Compensation For Unnecessary Surgery
By Lewis Aaliyah. Last Updated 6th February 2023. Welcome to our guide on claiming unnecessary surgery compensation. When you seek medical attention, you’re entitled to receive a minimum standard of care from the healthcare provider treating you. This means that they need to act in a way that stops their patients from coming to avoidable harm.
When you undergo surgery, it’s expected that you will experience some harm and discomfort as a result. For instance, you will usually require an incision which you will need to recover from and which may leave a scar. Furthermore, you may experience a period of recovery from the anaesthetic that you were given as part of the operation.
In many cases, these side effects are accepted as part of medical treatment. Doctors are not considered negligent if they adhere to their duty of care and negative side effects occur anyway.
Sometimes, however, it can become apparent that the operation you underwent was not actually necessary as part of your treatment. It may be that your condition was misdiagnosed completely, meaning that you were offered treatment for a condition you did not have. Or perhaps your doctor failed to inform you about an alternative course of treatment that would have been less invasive.
Whether you received treatment from the NHS or a private healthcare provider, you’re owed the same duty of care. You could be owed compensation for harm caused to you by unnecessary surgery.
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Services And Information
- Everything You Need To Know About Unnecessary Surgery Compensation Claims
- What Is Considered Unnecessary Surgery?
- How Could Medical Negligence Lead To Unnecessary Surgery?
- How Much Could I Claim For Unnecessary Surgery?
- Medical Misdiagnosis
- Failing To Get Informed Consent
- Failing To Offer Non-Surgical Procedures
- Time Limits To Make Unnecessary Surgery Compensation Claims
- I Was Harmed By Unnecessary Surgery, What Should I Do?
- Claim For A Unnecessary Surgery On A No Win No Fee Basis
- Useful Pages
- Unnecessary Surgery FAQs
When a doctor recommends that you undergo surgery, it is entirely reasonable for you to assume that it is necessary. After all, every healthcare provider has a duty of care towards you to provide a minimum standard of care. This means that they need to act in a way that prevents you from coming to further harm as much as possible.
Sometimes, however, a healthcare provider could be in breach of their duty of care towards you and perform surgery that was not necessary. This, in turn, could cause you harm in the form of an incision that you need to heal from or an increased risk of infection from the procedure.
Not all instances of you undergoing surgery when it’s not necessary to do so will be the result of medical negligence. For instance, your doctor may misdiagnose your condition while adhering to the standards expected of their profession, which results in them recommending surgery for a condition that you do not have.
In order to ascertain whether or not the doctor treating you acted negligently, the courts will usually administer something called the Bolam Test. This is where a panel of healthcare professionals who specialise in the same field are asked whether or not the level of care provided falls within an acceptable standard. If not, then the healthcare professional in question would be considered negligent.
Unnecessary surgery can take many forms and impact you in a number of ways. Examples of unnecessary surgery could include:
- Surgery arising from a misdiagnosis, for example, when your results and mixed up with those of another patient
- Wrong-site surgery, for example, where your right knee is operated on instead of your left
- Unnecessary reproductive organ surgery, for instance, where a hysterectomy is performed based on the misreading of medical records
- Orthopaedic surgery arising from a failure to read or interpret an x-ray or scan correctly
- Unnecessary heart surgery, such as the implantation of a pacemaker that was not required
- Failure to offer a non-surgical alternative
The list above is not exhaustive. There may be some other instances where your health has been impacted by an unnecessary surgical procedure.
If so, our panel of solicitors could represent you on a No Win No Fee basis. They can help you claim compensation for your injuries and any financial losses you have experienced as a result.
There are a number of different ways that medical negligence could result in you undergoing surgery that you did not need. We’ve covered some of them below; however, if your circumstances differ from any of these that we have detailed, please don’t hesitate to contact us as you may still be able to claim.
In some cases, you might undergo unnecessary surgery because a doctor has failed to read the results of a scan or test properly. For instance, you may have suffered a minor, undisplaced fracture that is X-rayed. The doctor could mistakenly interpret the results of the X-ray as severe and displaced, meaning that they recommend you undergo surgery so that the bones can be fixed into position with pins and plates.
Failing to take into account your medical history or review your medical records could also lead to surgery that is unnecessary. For example, you may present at the hospital with severe abdominal pain that indicates you’re suffering from appendicitis; however, you’ve already had your appendix removed years before. If your doctor failed to look at your medical records, this could lead to unnecessary surgery being arranged.
You may also undergo surgery that you have no need for if your medical records are mixed up with those of another patient. For example, your records could be confused with another patient who needs bowel surgery, which is then performed on you. Not only could this lead to you undergoing recovery for a surgery you did not need, but it could also lead to you having to deal with the repercussions of the surgery for the rest of your life.
Unnecessary surgeries can cause both minor and significant injuries. When we refer to compensation relating to the pain, suffering or loss of amenity caused by unnecessary surgery cases, this is known as general damages. General damages will always be awarded in a successful claim. An expert solicitor from our panel could help arrange for you to be assessed as a medical professional, and their diagnosis can be used as evidence.
We’ve listed examples of unnecessary surgery compensation below relating to general damages. The compensation amounts are lifted from the April 2022 edition of the Judicial College Guidelines (JCG). The publication features figures relating to a number of injuries. The amounts are influenced by awards given to claimants in settled personal injury claims. However, please only use the figures as guidelines.
|Infertility||As the result of an injury or disease with residual scarring||£107,810 to £158,970|
|Loss of spleen||Where the injured person is left with a continuing risk of infection because of the damage done to the immune system||£19,510 to £24,680|
|Loss of both arms||In the event that the person is fully aware and made considerably helpless||£225,960 to £281,520|
|Above-elbow amputation||The award within the bracket will be dependent on how easy it is for the injured person to use a prosthetic||£102,890 to £122,860|
|Below-elbow amputation||Awards to the top end of this bracket will be appropriate where severe organic and phantom pains are present||£90,250 to £102,890|
|Loss of both legs||Where both legs are amputated above the knee, or one significantly above the knee and the other below||£225,960 to £264,650|
|Amputation of both legs below the knee||The compensation awarded will depend on factors such as the extent to which the legs were amputated and the presence of any phantom pain or psychological impact||£189,110 to £253,480|
|Amputation of one leg above the knee||The compensation awarded will depend on factors such as the extent to which the leg was amputated and the presence of any phantom pain or psychological impact||£98,380 to £129,010|
|Kidney||Where one kidney is lost but there is no damage to the other kidney||£28,880 to £42,110|
As well as general damages, you could also receive special damages. This is the part of your compensation that takes into account the financial impact that your injuries have had on you.
As part of the special damages head of your claim, you can claim things like:
- Loss of earnings, or loss of future earnings if your future earning capability is impacted
- Medical costs, for example, the cost of treatment or care that you need
- Transport costs to and from medical appointments
- The cost of adaptations to your home
You will need to provide evidence as to the financial losses you have incurred. This can be things like receipts, bills and invoices to show how much you have spent.
Remember, you can only be compensated once. For this reason, it is essential that you make the most out of your claim.
A misdiagnosis is where your condition is mistakenly diagnosed as a different condition. A missed diagnosis is where the symptoms of your condition are not picked up, meaning that you aren’t diagnosed with anything at all.
You may have been mistakenly diagnosed with cancer, meaning that you undergo surgery to remove a tumour. If it was found that you did not have cancer, then this operation would be considered unnecessary.
Or alternatively, a doctor could overestimate the severity of an infection, resulting in amputation. If your doctor’s diagnosis of your condition did not constitute an acceptable standard of care, then this could be an example of medical negligence.
In these circumstances, unnecessary surgical procedures can result in serious, long-term implications on your quality of life. For more information about how you could claim for harm caused as a result of medical negligence, speak to our team today.
When you seek medical attention, whether it’s from the NHS or a private healthcare provider, you need to give permission before anything is done to you. It’s not just surgery that requires you to give consent; you must also provide it for any tests or examinations you undergo, too.
In some cases, it’s not necessary for a doctor to seek your consent to carry out a treatment. If the person does not have the mental capacity to make a decision about treatment and doesn’t have a lasting power of attorney, then healthcare professionals can provide care that they believe is in the patient’s best interests.
Furthermore, it’s not enough for you to simply give consent to a surgical procedure. In order for consent to be valid, it needs to be voluntary, informed and you need to have the capacity to make a decision.
For example, you may not have been told about the risks that surgery carries, and so the consent that you gave for this to be performed would not be informed. If you were to undergo the surgery and experience some of the side effects that you were at risk of, you may be able to claim. Get in touch with our team today for more information about claiming when you did not give informed consent for an operation to happen.
In some cases, surgery is not the only kind of treatment that could be used to address your condition. For example, there may be instances where medication or a course of physiotherapy could have treated you or reduced your symptoms.
If your doctor failed to tell you about these alternative treatments, this could lead you to feel like surgery is your only option with regards to getting better. This means that the consent that you gave for the surgery to be carried out was not informed.
Unnecessary surgery could result in pain and discomfort at the site of the incision. It may also lead to you having to take time off work to recover. You might not have experienced these if you were given the option of a non-surgical procedure.
If you would like to claim because you were not told about non-surgical alternative treatments, then why not speak to our team today? One of our advisors could help by offering a no-obligation claim valuation.
The Limitation Act 1980 sets out the time limits that apply when making medical negligence claims. In general, you have 3 years from the date that the unnecessary surgery was performed to begin your claim.
However, in some instances, you may only have become aware that the surgery was unnecessary at a later date. If this is the case, the 3-year limit begins from the date you became aware that your condition was caused by negligence. This is known as the “date of knowledge”.
If the party subjected to the unnecessary surgery was a child at the time, then the 3-year limit doesn’t start until the date of their eighteenth birthday. Before this, a litigation friend can claim on their behalf, and the time limit is suspended. A litigation friend is someone who acts on behalf of someone who cannot represent themselves.
If someone lacks the mental capacity to make a claim, a litigation friend can help claim on their behalf, too. The time limit is suspended while they lack the capacity to claim; in the event that they recover, it starts again. Otherwise, it’s suspended indefinitely.
If you have been harmed as a result of unnecessary surgery, your first consideration should be seeking medical attention. This means that a medical professional can record your injuries, and the benefit of this is twofold. It means that you will receive the treatment you need and could provide evidence to support your claim.
You should also collect evidence to support how the unnecessary surgery has affected you. For example, you may want to keep a record of your medical appointments, notes of your injuries or photographs of your symptoms.
Medical negligence matters can be complex; for this reason, we recommend that you seek legal advice as this could help you get more money from your claim. While it’s not a legal obligation, it could help the claims process run more smoothly than it otherwise would.
Medical negligence claims can be complex, and because of this, you may recognise the benefit of making a claim on a No Win No Fee basis. Perhaps you have heard this phrase before but are not entirely sure about what it means.
A No Win No Fee agreement, which is sometimes called a Conditional Fee Agreement, means that:
- Your solicitor would not ask you to pay their fees upfront or whilst your claim is ongoing.
- They would also not ask you to pay any fees if your claim was unsuccessful
In the event that you receive compensation for your injuries, your solicitor will make a deduction from your compensation. This is known as a success fee. The percentage they can deduct is capped and will be agreed upon with you in advance.
For more information on the benefits that No Win No Fee agreements can offer, why not speak to a member of our team today? You can do so on:
Can you sue a doctor for unnecessary surgery?
Yes. If you have undergone unnecessary surgery as the result of medical negligence and you were caused more harm than you would have experienced if you had not undergone surgery, then you could claim compensation.
How can I prove my pain and suffering?
As part of your claim, you will usually be invited to a medical assessment with an independent expert. Here, they will assess the severity of your injuries and confirm that they were caused by the negligence you experienced.
What is the average settlement for pain and suffering?
Each case is different, so this is a difficult question to answer. You can call one of our advisors for a free, no-obligation valuation of your claim.
Thank you for reading our article on making a claim for unnecessary surgery compensation.
Written by Gunnion
Edited by Stocks