What you need to know
Short answerA UK surgical negligence claim succeeds where expert evidence shows the surgeon's decision-making, technique or post-operative care fell below the standard of a reasonably competent surgeon (Bolam/Bolitho) and caused avoidable injury — including consent failures under Montgomery v Lanarkshire.
Common surgical-error claims
- Wrong-site or wrong-side surgery — a recognised Never Event. WHO Surgical Safety Checklist failures are usually involved.
- Retained foreign objects — swabs, instruments or guidewires left in the body. Also a Never Event.
- Nerve damage — from poor surgical technique or inadequate identification of structures.
- Bowel or organ perforation — during laparoscopic surgery, not recognised intra-operatively.
- Wrong implant or prosthesis — wrong size, wrong side, or contra-indicated device.
- Mismanaged post-operative complications — bleeding, anastomotic leak or sepsis not investigated.
- Inadequate consent — risks of the operation, or reasonable alternatives, not properly explained.
Why consent matters: Montgomery
In Montgomery v Lanarkshire Health Board [2015] UKSC 11 the Supreme Court replaced the old "professional judgement" test for consent. A clinician must disclose any material risk that a reasonable patient in your position would attach significance to, and any reasonable alternative treatments. Where that did not happen, and you would have chosen differently, the failure of consent itself founds a claim — even if the surgery itself was technically perfect.
Private surgery
Private surgical claims usually proceed against the individual consultant (indemnified by a defence organisation) rather than the private hospital. Always keep your contract, invoice and consent documentation — they confirm who is responsible for what.
Frequently asked questions
What is a surgical error in UK negligence law?
A surgical error is a departure from the standard of a reasonably competent surgeon that causes the patient avoidable harm. It is not the same as a recognised complication — most operations carry risk, and an outcome alone is not negligence. The legal question is whether the surgical decision-making and technique fell below acceptable practice.
What is a Never Event?
A Never Event is a wholly preventable patient safety incident identified by NHS England. Surgical examples include wrong-site surgery, wrong implant or prosthesis, and retained foreign objects after a procedure. A Never Event is strong (though not automatic) evidence of negligence.
Does signing a consent form stop me from claiming?
No. Consent covers the risks that were properly explained to you. Under the Supreme Court's decision in Montgomery v Lanarkshire Health Board (2015), a clinician must disclose any material risk a reasonable patient in your position would attach significance to. Inadequate consent itself can be the breach of duty.
What damages can I recover?
General damages for pain, suffering and loss of amenity using the Judicial College Guidelines bracket for the injury caused, plus special damages for revision surgery, lost earnings, care, equipment and any future losses.