Obviously, there are known risks associated with every procedure, and therefore, ensuring that the appropriate consent was obtained in the first place is very important. With that said, cases based on alleged lack of informed consent cases are generally very difficult to prove unless you can satisfy a judge convincingly that the person wouldn’t have undergone the procedure having been made aware of the balance of risks involved. Most surgeries are completely necessary and unavoidable, and few rational people would actually decide not to proceed in the face of a small risk of complication versus a far greater risk posed by the medical condition which has made the surgery necessary in the first place.
Where the question of informed consent can become more of an issue is in the context of completely elective surgery, such as cosmetic surgery or something like that, and if you can say, “Well, look. I would never have had this completely unnecessary procedure carried out if I had known that I was going to have chronic pain afterwards.” But, in most cases where the surgery or procedure is actually clinically indicated, satisfying a court that you wouldn’t have proceeded anyway if you had properly consented will prove difficult, unless the risk is very real. Furthermore, an independent surgical medical opinion may well take the view that a surgeon should not have recommended surgery if the risk of complication outweighed the potential benefits from the procedure, and indeed that the circumstances were such that they did not do so.
What does arise is the situation whereby surgery might have been chosen as a route, but there may have been a less invasive procedure available. There are a lot of injuries where surgeons are anxious to proceed because they are trained surgeons and they believe in surgery as the best mode of treatment, where there may be more conservative treatments available, such as laser treatment, et cetera. In the case of a shoulder and knee injury for instance, laser treatment has been seen to be effective and is much less invasive than surgery. These procedures can take longer and they may not be as tried and trusted but nevertheless if there are appropriate medical alternatives a patient should at least have the option of considering them.
Therefore, if you have a situation where complications arise out of surgery, which could have been avoided, and the client wasn’t given a full range of options before deciding whether to proceed, then there could well be circumstances giving rise to a claim that should be investigated.
Speak to our legal team now about your case. Call us Freephone on:
Request A Call Back
Get a call back from our legal team at a time that suits you.
Highly rated on TrustPilot
Read the latest reviews written by our happy clients.
Negligence in the Performance of Surgery
Apart from the question of informed consent, there is then the actual performance of the surgery itself. Examples of negligence in this context would include joint replacements (including hip and knee replacements) where the components aren’t put in at the right alignment, resulting in dislocation or instability. You can have situations where instrumentation is being inserted and screws or other fixatives can perforate the bone, or cause damage to other nearby organs.
Also, the failure to pick up on and diagnose infection can arise commonly in this context. Infection is a known risk associated with surgery, and the fact that an infection occurs, of itself would not give rise to an action. But, if an infection isn’t picked up on quickly and treated properly, you have the possibility of avoidable sepsis occurring. Sepsis is a potentially life-threatening complication of surgery which may arise particularly where there is a substandard technique used or a substandard system of aftercare provided, which otherwise could and should have been avoided.
Sepsis is an increasingly common complication and appears to be on the increase. It is really a question of identifying it properly and dealing with it in a timely fashion, because the longer it runs on, the greater the risk of a serious injury resulting in an amputation of upper body or lower body limbs or even death.
Perforations and tears in the context of surgical procedures can often result from medical negligence in this area. For example, a perforated bowel can result from the use of screws that are too long in spinal surgery. In gynaecological surgeries, you can have damage to the urethra, for instance, a nick of the urethra in the course of a hysterectomy.
Aside from surgery arising in a hospital context, you can also have instances of negligence arising in the course of minor surgery by GPs. For instance, certain contraceptive devices, ones comprising a small metal rod are inserted into the upper arm of a woman by a GP in the local surgery. It’s also removed under local anaesthetic by the GP.
Complications can arise in the course of this procedure which could require referral to a plastic surgeon. Failure to do so could result in nerve damage and scarring that could otherwise be avoided.
The failure in an emergency setting to properly diagnose and refer in the case of lacerations that may require plastic surgery can also give rise to instances of negligence. For instance, if a person were to attend an A&E department with a laceration following a fall or other accident and was just sent home because there was no plastic surgery unit at the hospital when they should have referred her to the closest hospital with a plastic surgery facility, this can result in delayed healing and markedly inferior outcomes, perhaps resulting in follow-up treatments that might otherwise be avoided, nerve damage involving chronic pain, scarring and serious disfigurement, whereas if the laceration had been properly cleaned and sutured by a plastic surgeon on the first occasion, all of that could be avoided.
Surgical Negligence Claims
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.
Our Awards & Accreditations
We are a multi-award winning firm, accredited by the Law Society of Ireland.
In contentious business, a legal practitioner shall not charge any amount in respect of legal costs expressed as a percentage or proportion of any damages (or other moneys) that may become payable to his or her client or purport to set out the legal costs to be charged to a junior counsel as a specified percentage or proportion of the legal costs paid to a senior counsel. A legal practitioner shall not without the prior written agreement of his or her client deduct or appropriate any amount in respect of legal costs from the amount of any damages or moneys that become payable to the client in respect of legal services that the legal practitioner provided to the client.
Directly contact our partners via email about your case.
Follow Flor on Social Media
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.
Follow John on Social Media
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.