Clearly, every medical procedure carries inherent risks, making it crucial to obtain proper consent. Proving a case of insufficient informed consent is challenging, as it requires convincing evidence that a patient would have declined the procedure after fully understanding the risks versus the benefits. Most medical interventions are essential, with the benefits far outweighing the minor risk of complications compared to the health risks they address.
The issue of informed consent becomes more pertinent in elective surgeries, such as cosmetic procedures, where patients might argue against undergoing an unnecessary operation had they known about potential long-term complications. However, for clinically necessary procedures, convincing a court that the patient would have opted out with full knowledge of the risks is difficult, unless the risks were significant. Independent reviews often assess whether the surgery’s potential complications were justified by the expected benefits.
Situations may arise where surgery was chosen over less invasive alternatives. Surgeons, favoring surgery due to their training, might overlook other treatments like laser therapy, which could be effective and less invasive for conditions like shoulder and knee injuries. If a patient is not presented with all viable options and complications arise from a potentially avoidable surgery, this could lead to a valid claim for investigation.
Negligence in the performance of surgery
Negligence during surgery can manifest in various ways, such as improperly aligned joint replacements (including those for the hip and knee) leading to dislocation, or misplaced screws causing bone perforation or organ damage. A significant concern is the mishandling of post-surgical infections. While infections are known risks, failure to promptly diagnose and treat them can lead to severe complications like sepsis, a life-threatening response that could necessitate limb amputation or result in death if not addressed swiftly.
Additionally, surgical errors may include perforations or tears, like bowel damage during spinal procedures or urethral injuries in gynecological surgeries. Such complications often stem from negligence, highlighting the importance of precision and proper aftercare.
Negligence isn’t confined to hospital surgeries; it also occurs in minor procedures performed by GPs, such as the insertion and removal of contraceptive devices, where improper handling can cause nerve damage and scarring. Similarly, emergency care negligence, like inadequate treatment of lacerations due to lack of plastic surgery referral, can lead to delayed healing, chronic pain, and serious disfigurement. Proper initial care could prevent such outcomes, emphasising the critical need for accurate diagnosis and appropriate referrals in avoiding preventable complications.
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Frequently Asked Questions
Some of the questions our team are often asked.
What is the legal definition of surgical negligence?
Surgical negligence, a form of medical malpractice, is legally defined as a failure by a healthcare provider to adhere to the accepted standards of practice in the surgical field, resulting in harm to the patient. This can include errors during surgery, such as performing the wrong procedure, leaving surgical instruments inside a patient, operating on the wrong body part, or causing infections due to poor sterilisation practices. The key element is the breach of the duty of care that causes direct harm to the patient, which could have been avoided through the exercise of appropriate skill and care by the medical professional.
How should hospitals and surgeons minimise the risk of injury to patients?
They minimise the risk of injury to patients by adhering to stringent safety protocols, including thorough pre-surgical planning, precise communication among surgical team members, continuous education and training in the latest surgical techniques and safety practices, meticulous adherence to sterilisation and hygiene standards, and the use of checklists to prevent common errors. Implementing advanced technological tools for surgery planning and execution, along with fostering a culture of openness where staff can freely report potential safety concerns without fear of retribution, are crucial steps in enhancing patient safety and reducing the incidence of surgical negligence.
In what circumstances might I be able to bring a claim for surgical negligence?
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About McCarthy + Co
With more than 30 years of experience in dealing with surgical negligence claims, McCarthy + Co. has expertise in a wide variety of fields relating to medical negligence and personal injury. We are a family-run business, and we pride ourselves on offering honest, impartial and helpful advice.
Our offices are based in Dublin and Cork but we work with clients throughout Ireland in locations ranging from Galway to Waterford. You can count on us for legal advice, guidance and assistance on any form of medical negligence claim.
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Flor McCarthy wears multiple hats, not only as the managing partner of one of Ireland’s leading law firms, but also as an author, speaker and an acknowledged expert in client service, innovation and marketing.
Beginning his academic journey at UCC, Flor furthered his education with a master’s degree in law from UCD. After gaining valuable experience as a solicitor in Dublin, the allure of home and the family brought him back to West Cork to contribute his expertise to the family business.
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John McCarthy is a seasoned solicitor with almost 20 years of experience, specialises in personal injury and medical negligence claims, focusing particularly on high-value compensation cases. His extensive litigation experience spans Circuit Court, High Court and Supreme Court levels.
John's practice involves a diverse range of cases, from personal injury and wrongful death to property damage, defective products, professional negligence and judicial reviews.