Surgery carries inherent risks that every patient is warned about before they consent to a procedure.
But when an error occurs that a competent surgeon would not have made, the outcome is different in law as well as in life.
You went into the theatre with a reasonable expectation that you would be treated with the care and skill expected of a qualified surgical professional.
If that standard was not met and you suffered serious harm as a result of a retained surgical instrument, nerve damage, a wrong-site procedure, or a complication that a careful surgeon would have avoided, the law provides a route to accountability.
In Ireland, surgical error falls within the broader category of medical negligence law.
The court applies the standard established in Dunne v National Maternity Hospital [1989] IR 91, asking whether no surgeon of ordinary care and competence would have acted in the same way.
Stages where surgical errors can occur?
The following list is not exhaustive, and your specific case may not be listed below.
We are here to listen and give you sound, qualified advice on your case, and our team of medical negligence solicitors understands that each person’s experience is different and should be treated with empathy and care throughout the entire legal process.
Many of our clients who have suffered surgical errors experience months and sometimes years of physical and/or psychological discomfort or pain and are left, in some cases, with severe scarring and/or disfigurement due to medical malpractice.
- Intraoperative Care
- Wrong Site Surgery (where the incorrect item is removed or operated on)
- Wrong Side Surgery (where the opposite organ is removed in error)
- Foreign Objects Left during Surgery
- Preoperative Care (Marking Surgery Site, Anesthesia errors, etc.)
- Postoperative Care
- Multiple Phases of Care
- Multiple Clinicians
- Delay in Diagnosis
System Factors
- Inexperience
- Lack of Technical Competence
- Communication Breakdown
Results of surgical errors medical malpractice
- Scarring
- Depression
- Pain
- Psychological Issues
- Psychical limitations to movement
- Loss of Earnings
- Continuing Side Effects
- Additional Surgical Procedures to correct errors
- Significant or Major Injury
- Death (in severe cases)
The claim process
1. Consult our medical negligence solicitor
You should speak to an experienced team of Medical Negligence Solicitors as soon as possible if you think you were not given adequate or appropriate medical care, which results in you sustaining an injury or illness.
2. We obtain your medical records
After the consultation with your medical negligence solicitor, he/she will request access to your medical records and engage an independent medical expert to assess your records.
The purpose of engaging an independent expert is to establish whether there was any negligence on the medical professional’s part.
3. The medical negligence litigation process
Where the independent medical expert is of the professional opinion that medical negligence did occur, upon your instructions, your solicitor will begin issuing legal proceedings in Court against the medical professional and/or hospital.
Statute of Limitation
The legal time limit to make a medical negligence claim is two years from the date of injury or date of knowledge that the injury or illness resulted from medical negligence.
For children/minors, the time limit expires two years after their 18th birthday.
You may contact a solicitor to discuss your case and advise you of the statute of limitations applicable to your case.
Frequently Asked Questions
What types of surgical errors can give rise to a claim in Ireland?
In Ireland, a surgical negligence claim may arise from a range of intraoperative and perioperative errors.
Common examples include wrong-site surgery (operating on the wrong side or wrong body part)
- Retained surgical instruments or swabs following a procedure;
- Anaesthesia errors, including failure to monitor the patient adequately or administer an incorrect dose;
- Nerve damage caused by improper surgical technique;
- Post-operative failures such as inadequate monitoring, delayed recognition of complications, or premature discharge; and
- Failure to obtain properly informed consent before a procedure.
Not every complication gives rise to a surgical error claim. The question is whether the error was one that a surgeon of ordinary care and competence would have made.
What is the legal standard for a surgical error claim in Ireland?
In Ireland, the legal standard applied to surgical negligence claims is the Dunne standard, derived from the Supreme Court decision in Dunne v National Maternity Hospital [1989] IR 91.
The court asks whether the act or omission in question was one that no surgeon of ordinary care and competence exercising ordinary care would have carried out.
In other words, the claim is not that the outcome was bad surgery carries inherent risks, but that the specific error was one a competent surgeon should not have made.
Independent expert evidence from a surgeon with appropriate experience in the relevant speciality is required to establish this.
How long do I have to make a surgical error claim in Ireland?
In Ireland, the limitation period for a surgical negligence claim is two years from the date of knowledge under the Statute of Limitations (Amendment) Act 1991.
The date of knowledge is the date on which you first knew or ought reasonably to have known that the injury you suffered was attributable to the surgery.
For surgical errors, this is often the date of the operation itself, but can be later, where the harm was not immediately apparent, for example, where a retained instrument was not discovered until a subsequent scan.
For claims involving children, the two-year period does not run until they reach 18 years of age.
Given the time required to obtain operative notes and expert reports, legal advice should be sought as soon as possible after the injury comes to light.
What evidence is needed to support a surgical error claim in Ireland?
Supporting a surgical error claim requires a thorough documentary record of what happened in theatre and in the post-operative period.
The key documents are the operative notes (the surgeon’s contemporaneous record of the procedure); anaesthesia records; nursing charts and handover notes; imaging and pathology reports; and pre-operative consent documentation.
Coleman Legal LLP requests these records directly from the hospital or clinic and reviews them with an independent surgical expert witness who can identify whether the care fell below the required standard and whether that failure caused or contributed to the harm.
Does a surgical error claim have to go through PIAB in Ireland?
No. Medical negligence claims, including those arising from surgical errors, are exempt from the Personal Injuries Assessment Board process under Section 3(3) of the Personal Injuries Assessment Board Act 2003.
PIAB is designed for personal injury claims arising from road traffic accidents, public liability incidents, and employer liability claims.
It does not have jurisdiction over claims arising from the provision of a health service or the carrying out of a medical or surgical procedure.
A surgical error claim is issued directly in the High Court without requiring prior PIAB assessment or authorisation.
