When a hospital or doctor fails to provide surgical treatment to the standard of care expected of a reasonably competent practitioner, a patient may be entitled to bring a claim for medical negligence and seek compensation.

However, to be successful in bringing a claim for medical negligence, a patient will need to prove the harm they have suffered was caused by the negligence of the surgeon - not by a known risk or common complication of the surgery performed. 

This article will unpack and explain some of the common surgical errors that lead to medical negligence claims, including:

• Performing a surgical procedure negligently;
• Delays in providing surgical treatment;
• Failure to appropriately manage the risk of infection at the surgical site;
• Failure to provide surgical care when it is clinically indicated; and
• Recommending and performing unnecessary risk surgery.

1. Performing Surgical Procedure Negligently

One common surgical error which leads to medical negligence claims is when a surgeon performs the surgical procedure negligently.

All surgical procedures have known risks and complications. Where a known risk or complication of surgery occurs through no fault or error by the surgeon, a patient will not be entitled to bring a claim for compensation.

However, if a surgeon fails to exercise due care and skill when performing a surgical procedure, causing the patient to suffer harm, they're likely to be liable for medical negligence.

An example of this error would be if a surgeon incorrectly placed a metal plate or screw during the surgical repair of a fractured bone and, as a result, the patient's fracture does not heal properly.

2. Delays in Providing Surgical Treatment

Where a patient needs urgent, life-saving surgery, it is important that their doctor ensures they receive prompt surgical treatment.

Where a doctor fails to recognise that their patient requires urgent surgical treatment and fails to take steps to ensure that surgical treatment is promptly received, they may be liable for medical negligence.

For example, if a patient presents to an emergency department or their general practitioner with the symptoms of a stroke, and their doctor fails to appropriately diagnose them and recommend surgical treatment. Early intervention and surgical treatment for a stroke may lead to a better clinical outcome. Accordingly, missing the opportunity for early surgical intervention may mean that the patient suffers more severe and long-term symptoms which could have been avoided.

A further example of a potential claim is where a patient is put on a waiting list for surgery due to limited hospital resources. If the patient is not properly monitored and their condition deteriorates irreparably whilst waiting for surgical treatment, the hospital may be liable for medical negligence.

3. Failure to Appropriately Manage the Risk of Infection at the Surgical Site

Whenever a patient undergoes a surgical procedure, they are at risk of sustaining an infection at the surgical site. This is a known risk of surgery.

However, where a surgeon fails to take appropriate measures to manage the risk of infection, they may be liable for medical negligence.

What is appropriate to manage the risk of infection will vary. Some common measures to manage the risk of infection include:

• Ensuring medical equipment is properly sterilised;
• Prescribing antibiotics; and
• Scheduling regular post-surgery check-ups for monitoring and wound care.

4. Failure to Provide Surgical Treatment When Clinically Indicated

In some cases, surgery is a patient's best treatment option. Although surgery is often considered a last resort, there are occasions where surgical treatment is the most appropriate and effective treatment plan for a patient.

In circumstances where most doctors would agree that a patient's best option is to receive surgical treatment, a doctor may be liable for medical negligence if they fail to recommend or refuse to provide surgical treatment.

An example of this surgical error would be a failure to recommend or a refusal of a request for a caesarian section where it is medically required due to fetal or maternal distress. If a labouring parent suffers harm after being forced to proceed with vaginal delivery when there were circumstances to suggest that a caesarian section was the best delivery option, the doctor may be liable for medical negligence.

5. Recommending and Performing Unnecessary Risk Surgery

A final error which may give rise to a claim for medical negligence is when a doctor recommends and performs a risky surgical procedure when conservative treatment is more appropriate.

Surgery is inherently dangerous, with many potential life-threatening complications. Accordingly, in many cases, surgery should be considered a last resort.

Accordingly, if a patient suffers serious complications after undergoing a risky surgical procedure when less invasive treatment would have likely been effective, they are likely liable for medical negligence.

For example, if a doctor recommends a patient with mild carpal tunnel syndrome undergo surgery when most doctors would agree that conservative, non-invasive treatment options (such as a wrist splint or anti-inflammatory medications) should have been tried first. If the patient suffered serious complications during the surgery, the doctor is likely to be liable for negligence as the treatment plan was inappropriate, and the harm could have been avoided.