Claim Compensation for Unnecessary Surgery

If you undergo a medical procedure which later transpires to have been unwarranted, can you claim compensation for unnecessary surgery after the event?

To provide an appropriate answer to whether you are entitled to claim compensation for unnecessary surgery, a solicitor would need to know what type of medical procedure you underwent, why it was considered necessary by your medical practitioner and what the consequences of the surgery were.

The list of scenarios in which a patient may undergo unnecessary surgery is extensive and would range from the negligent extraction of a tooth to the removal of a healthy organ. While these two examples obviously have very different consequences, in order to make an unnecessary surgery compensation claim it still has to be proven that ‘at the time and in the circumstances’ the surgery was arranged, the medical practitioner who organised it displayed a poor professional performance and was in breach of his or her duty to provide you with an acceptable standard of care.

To establish whether you are eligible to make a claim for surgery that was unnecessary, you should speak with a solicitor to explain the specific circumstances of the medical procedure that you underwent, how you discovered that it was unwarranted and whether further surgery is still required to either correct the unnecessary surgery or to deal with a health issue that should have been resolved at the time (for example if you had a healthy tooth removed by mistake, there may still be an unhealthy tooth that needs extraction).

A solicitor would arrange for your medical notes to be reviewed by an independent medical expert to determine whether the medical practitioner who advocated surgery was ‘at the time and in the circumstances’ guilty of medical malpractice and if alternative forms of treatment could have dealt with a health issue without you having to undergo surgery.

Even when medical negligence can be established, this does not automatically entitle you to claim compensation for unnecessary surgery. In order for you to recover compensation, it also has to be demonstrated that you suffered an avoidable loss, injury or the deterioration of an existing condition that could have been prevented if a ‘competent’ physician had examined you prior to the medical procedure. In certain cases, where future revision surgery is required, the nature of the surgery may qualify you to claim compensation for unnecessary surgery.

Once this conclusion is reached by the medical expert, your solicitor would write a ‘Letter of Claim’ to the negligent medical practitioner, advising them that you are making a claim for surgery that was unnecessary and supporting the letter with the evidence of negligence compiled by the independent expert.

Thereafter one of two things can happen. Either the medical practitioner will acknowledge their liability, and your solicitor will negotiate an appropriate settlement of your unnecessary surgery compensation claim, or liability will be denied. In the latter scenario, you would have to discuss with your solicitor whether it is worth your while to pursue a claim compensation for unnecessary surgery through the courts; although the issuing of court proceedings often results in an out-of-court settlement if you have a sufficiently viable claim.

Because there are so many potential scenarios, it would be beneficial to any unnecessary surgery compensation claim you are entitled to make if you spoke with a solicitor at the first practical opportunity.



This is an Information site only – if you feel you have a potential claim, you should discuss your situation with a solicitor registered with the Law Society of Ireland.