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Title: Can I claim for botched operation?

Date: 09 September 2015

Q

I had a filtering accident in March. Liability is still being argued about as the insurer of the car driver that hit me is saying it was 50% my fault. I think it is all his fault. However that is not my main problem. I went to hospital for some surgery to my wrist but it went wrong and I have limited range of movement and power in my hand. They don’t think I am going to regain full use but think physio will help. I want to know if I could sue the surgeon or hospital? Surely they can’t just make mistakes like this and get away with it?

Dennis the Menace, by e-mail

A

You don’t say precisely what went wrong; whether a known risk of the surgery or whether it was a negligent mistake. I assume the surgery was needed as a direct result of the bike accident so that claim may well encompass this further injury and its consequences if the claim against the NHS fails. You would actually be suing the NHS Trust under which the hospital falls rather than the hospital or surgeon directly. The test to apply is known as the Bolam Test.

To satisfy this test you must show that there was a duty of care owed which in medical claims there always is. You then need to show that the duty has been breached which means the doctor must have fallen below a standard of a responsible body of medical practitioners – if so this is negligence. Then you need to show that the negligence led to the harm (partial loss of use of the hand). Finally that the harm was not too remote – i.e. it was unforeseeable.

Whether the mistake was a known risk is a crucial aspect to consider. You need to investigate whether there were negligent mistakes in practice or procedure and whether established guidelines were not followed by the doctor and you will need expert medical evidence to support your claim in this regard. If there was no negligence by the NHS Trust then the injury will fall under your bike accident claim.

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