Common Surgical Negligence Claims
The Montgomery Test — Informed Consent
The Supreme Court's decision in Montgomery v Lanarkshire Health Board [2015] fundamentally changed the law on surgical consent. The test is now patient-centred rather than doctor-centred:
- A surgeon must warn a patient of any material risk in the proposed treatment
- A risk is material if a reasonable person in the patient's position would be likely to attach significance to it, OR if the doctor knows that the particular patient would attach significance to it
- If the patient would have declined the operation had they been informed of the risk, and the undisclosed risk materialised, the surgeon is liable for the patient's outcome — even if the operation itself was performed to the Bolam standard
- The defence that the patient "wouldn't want to know" about risks is no longer available — the decision is the patient's, not the clinician's
Frequently Asked Questions
I was warned about a complication before surgery — can I still claim?
Yes — being warned of a risk does not prevent a claim based on negligent execution of the surgery. The Bolam test applies to the surgical technique and post-operative care independently of the consent process. If the complication arose from a negligent surgical act rather than the inherent risk of the operation, you can claim even if you were warned of the risk. The two questions — "did the surgeon warn of the risk?" and "did the surgeon perform the operation negligently?" — are legally separate.
I signed a consent form — can I still bring a Montgomery consent claim?
Yes. Signing a consent form is not conclusive evidence that the clinician discharged their Montgomery duty. The form is evidence that you consented — not that the risks were adequately explained. If the consent form listed the risk generically without specific discussion, if the consent was obtained at an inadequate time before surgery (rushed consent on the day, under medication), or if there was no meaningful opportunity for you to ask questions, the Montgomery duty may not have been adequately discharged. A solicitor reviews the consent documentation and the circumstances of the consent process.
Can I claim for psychological trauma as well as physical injury?
Yes. Surgical complications frequently cause psychological harm — PTSD following anaesthetic awareness, depression and anxiety following disfiguring complications, and psychological injury from an operation that leaves a patient significantly worse off than before. Psychiatric expert evidence is obtained alongside the physical injury assessment. PTSD arising from anaesthetic awareness is a recognised and serious psychiatric injury with its own damages bracket in the JC Guidelines.
What is a "Never Event" and what does it mean for my claim?
Never Events are defined by NHS England as wholly preventable patient safety incidents that should not occur when established preventive measures are in place. Examples include wrong site surgery, retained foreign object post-procedure, and wrong implant/prosthesis. Their occurrence is effectively self-proving on the issue of breach of duty — the question becomes one of causation and quantum rather than whether the standard of care was breached. NHS trusts are required to report Never Events and investigate them as Serious Incidents.
Can I claim if I required further surgery to correct the initial surgeon's error?
Yes — remedial surgery and its associated risks and outcomes are part of the damages arising from the original negligence. Where corrective surgery itself carries risks (which may materialise), the original negligent surgeon is liable for those consequential risks provided they were foreseeable. The cost of private remedial surgery, the recovery period, additional time off work, and any permanent consequences of the corrective procedure are all heads of loss attributable to the original negligent surgery.