Surgical procedures are complex by nature, and always carry a risk of complication. There are so many factors in play at any given time, that it requires a lot of skill and care to ensure each procedure runs smoothly. More often than not, procedures are carried out and completed without incident. When something does go wrong however, it can result in various degrees of damage ranging from long term to short term for the patient. A claim can be raised for issues arising during the surgery or for medical consequences that develop after the procedure, but as a result of it. Due to the complex nature of the area, each case is unique and cannot be compared very closely to other cases, as we would do with other negligence or delictual claims. The time bar for such cases is 3 years from the date of the procedure, or 3 years from the date the harm is discovered. Where the victim is under 16, they have until their 19th birthday to raise a claim. Where the patient has died as a result of the surgical error, their spouse or parents can raise a claim within 3 years on their behalf.
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If claiming for surgical error, the pursuer does need to be able to show that the consequences of the surgery were as a result of direct or indirect negligence by the medical practitioner involved. If the pursuer has played a part in the harm, they would not be entitled to compensation. An example of this would be improper wound care at home, or perhaps physical activity the pursuer had been warned against, drug use etc. If the pursuer is partially responsible, in some circumstances a smaller payment still may be paid.
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If the claim is as a result of vicarious liability, where the establishment is held liable, as opposed to the medical practitioner directly, is most likely going to be a claim surrounding cleanliness, equipment, mixed up paperwork or something to that effect. Examples of vicarious liability would be cases where somebody claims against their local health board, the hospital directly or the NHS. This can be equally as serious as negligence caused by complacent practitioners because it can lead to things such as MRSA, Necrotising Fasciitis, wrongful amputation or unnecessary procedures being performed. These are often cases that should the establishment have been more vigilant, then the issue perhaps would never have arisen.
The most severe reason for bringing a surgical error case, is gross negligence. This is where the conduct of the practitioner was complacent or the error was due to lack of knowledge or care. This is similar in concept to failing in a duty of care, it is irrelevant if the intention to cause harm was present, as the harm was caused anyway. If the case is considered gross negligence, a court case would result and compensation would be paid at a higher sum than other claims. The practitioner would more than likely be relieved of their license to practice.
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