You went into surgery expecting to come out safer than you went in. If something went wrong - the wrong site was operated on, a surgical item was left inside, a nerve was damaged, anaesthesia was inadequate, or you weren't properly warned about a risk that then materialised - you may have a surgical negligence claim. This page walks through how UK surgical error claims work: the common types of surgical mistake, the two routes to liability (technical and consent), named NHS 'Never Events' that almost always succeed, and what compensation tends to follow.
You went into surgery expecting to come out safer than you went in. If something went wrong - the wrong site was operated on, a surgical item was left inside, a nerve was damaged, anaesthesia was inadequate, or you weren't properly warned about a risk that then materialised - you may have a surgical negligence claim. This page walks through how UK surgical error claims work: the common types of surgical mistake, the two routes to liability (technical and consent), named NHS 'Never Events' that almost always succeed, and what compensation tends to follow.
Every case we take on is on a no win, no fee basis.
Two routes to a surgical negligence claim
1. Technical negligence - the surgery itself
The classic claim - the surgeon or anaesthetist did something they shouldn't have done, or failed to do something they should have. Judged against Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 (was a responsible body of competent opinion behind the decision?), qualified by Bolitho v City and Hackney Health Authority [1997] UKHL 46 (is that opinion logically defensible?).
Many technical-negligence surgical claims are also NHS 'Never Events' - officially defined categories where the mistake should never happen when preventive measures are in place. Where a Never Event has occurred, the trust or private hospital has effectively conceded systems failed; liability is almost always admitted.
2. Consent negligence - Montgomery and McCulloch
Since Montgomery v Lanarkshire Health Board [2015] UKSC 11, the legal test for informed consent in the UK is: did the surgeon take reasonable care to ensure the patient was aware of any material risks involved in the recommended treatment, and of any reasonable alternatives? A risk is material if a reasonable person in the patient's position would attach significance to it, or if the particular patient would.
McCulloch v Forth Valley Health Board [2023] UKSC 26 confirmed that the identification of reasonable alternative treatments remains a matter for professional judgement applied on Bolam lines - but the risks and alternatives that are discussed must meet the Montgomery 'material risk' standard from the patient's perspective.
In practical terms: if you weren't warned about a known risk that then materialised, and you would have made a different decision if you had been warned, you may have a claim on consent grounds even where the surgery itself was performed competently.
The common types of surgical error
Wrong-site surgery (a Never Event)
Surgery on the wrong patient, the wrong limb, the wrong side of the body, or the wrong spinal level. Protected against by the WHO Surgical Safety Checklist and NHS England's NatSSIPs 2. Where wrong-site surgery has happened, it is almost always an admitted-liability case with the focus on causation and quantum - not whether a mistake was made.
Retained surgical items (a Never Event)
Swabs, needles, instruments or guidewires left inside the patient after closure. Routinely produces severe post-operative infection, perforation, or secondary surgery. Strict count procedures are supposed to prevent this; where they fail, liability is near-automatic.
Wrong implant, prosthesis or medical device (a Never Event)
Wrong-model hip, wrong-strength lens in cataract surgery, wrong-size breast implant, wrong-sided joint prosthesis.
Anaesthetic errors
Several distinct sub-types, each compensable:
- Anaesthesia awareness - the patient was aware during surgery (inadequate anaesthetic depth). Significant psychiatric injury is common and well-recognised by the JCG.
Nerve damage during surgery
Accidental transection or traction injury to a named nerve - spinal accessory, lingual, recurrent laryngeal, common peroneal, femoral. Some nerve damage is a known and accepted risk of a procedure; the claim succeeds where (a) the damage happened outside the accepted risk (technical negligence), or (b) the patient wasn't warned about that risk in advance (consent claim under Montgomery).
Bowel or organ perforation
Iatrogenic injury during laparoscopic or open surgery - bowel, bladder, ureter, vessel. Delay in recognising the perforation often compounds the harm and is separately compensable.
Post-operative infection
Claims succeed where aseptic technique was breached, antibiotics were not properly administered, or the infection wasn't recognised in time. See hospital negligence for the infection-control evidence framework.
Post-operative DVT / PE
Failure to assess VTE risk (under NICE NG89), failure to prescribe or administer prophylaxis, failure to recognise post-operative DVT or pulmonary embolism.
Failure to obtain valid consent
The Montgomery claim - no or inadequate discussion of material risks, no or inadequate discussion of alternatives, insufficient time to decide, or proceeding beyond the scope of consented surgery (e.g. removal of an ovary when only a cyst was consented to).
Who is the claim against?
For NHS surgery: the NHS trust, handled by NHS Resolution (CNST). For private surgery: the hospital operator and/or the individual surgeon's and anaesthetist's indemnifier (Medical Defence Union, Medical Protection Society, or a commercial insurer). Private surgical claims often involve multiple defendants - surgeon, anaesthetist, hospital - because each holds separate duties and separate indemnity.
You almost never face the individual clinician in court. Surgical negligence claims are defended by the insurer and NHS Resolution, not by the clinician personally.
How much compensation could you receive?
Every surgical negligence award is built from general damages (the avoidable injury, under the JCG 17th edition) and special damages (lost earnings, private treatment, care, adaptation). Illustrative general-damages ranges:
- Moderate brain injury (anaesthetic hypoxic episode): ~£52,550 - £267,340
Real-world settlements in surgical negligence span from low five figures for less serious technical errors to seven figures for catastrophic permanent injury. For the valuation framework see how much compensation.
The surgical negligence claim process
- Free eligibility call - specialist takes the account, identifies defendants, checks the time limit.
Time limits for surgical negligence
Three years from the surgery or the 'date of knowledge' under s.14 Limitation Act 1980 - when you first knew (or should have known) the injury was caused by the surgery. For children, three years from their 18th birthday. For protected parties, no time limit while capacity is absent. See time limits.
How is it funded? No win, no fee
Every surgical negligence claim we take on runs on a Conditional Fee Agreement. No upfront fees. If the claim wins, the success fee is capped at 25% of general damages and past losses; future losses (which are often substantial) sit outside the cap. If it fails, you pay nothing (subject to the CFA and ATE terms). See no win no fee explained.
