All surgical procedures carry a risk or injury. Common surgical risks can include damage to veins and arteries, injuries to the bladder, bowel or uterus, nerve damage, scarring, disfigurement and pain.

Before any surgical procedure, patients should have a detailed discussion with their treating clinicians who should explain the risks associated with the intended surgery and discuss any concerns raised by the patient. All patients should (wherever possible i.e. in elective procedures) sign a Consent Form prior to undergoing the surgery, which will list the known/recognised risks of the intended procedure.

But does signing a Consent Form accepting those risks mean any subsequent injuries cannot be considered to have been caused ‘negligently’?

Medical Negligence claims relating to perforation injuries can be very difficult to pursue. A lot of these injuries will be considered to be recognised risks; not caused by any negligent acts of the treating surgeons.

The purpose of a Consent Form is to ensure the patient is aware that risks exist and injuries can happen. They are also there to give treating surgeons a reasonable degree of protection, should such injuries ultimately occur. This doesn’t, however, provide surgeons with unlimited protection if a patient suffers a recognised risk of that surgery such as a perforation injury.

There is a fine line between a perforation injuries being caused non-negligently and those that are caused ‘negligently’. Such circumstances do however exist.

I have successfully represented a number of claimants who have suffered injuries during surgical procedures which were considered to be recognised risks and which were noted on the Consent Form. These include claims relating to a perforation to the abdominal aorta during a cholecystectomy procedure, bladder perforations during hysterectomies, bowel perforations leading to fistulas, and many more.

It is generally accepted that minimal access surgery (laparoscopic or keyhole surgery) is superior to conventional open surgery (laparotomy). Many techniques and technologies have been developed and introduced over the years to eliminate the risks associated with laparoscopic entry.

NCBI (National Center for Biotechnology Information) reported in 2009 that ‘meta-analysis of 27 randomised controlled trials comparing laparoscopy and laparotomy for benign gynaecological procedures concluded that the risk of minor complications after gynaecological surgery is 40% lower with laparoscopy than with laparotomy, although the risk of major complications is similar’.

Although it is regularly considered and suggested that patients who have suffered recognised risks of surgical procedures are just those ‘unlucky people’, there is a possibility that these injuries may have been caused due to negligent treatment. This can be due to a number of possibilities, such as the positioning of the port sites during laparoscopic surgery, the pressure used when inserting the laparoscopic instruments, the angle at which the instruments are inserted, a failure to adequately understand and appreciate a particular patient’s anatomy, a failure to move surrounding structures/organs out of the way with adequate care or with effective technique, or even a failure to  inspect a structure properly and locate a perforation which has been caused through no negligent acts, before ending the procedure and therefore failing to treat/repair it.

Studies have suggested that 30-50% of bowel injuries and 13-50% of vascular injuries are undiagnosed at the time of surgery. Since bowel injury is more common than vascular injury, it is more likely to produce serious conditions as a consequence of the injury because of the delay in diagnosis. The mortality rate from bowel injury is 2.5-5% (NCBI).

Jackson Lees has experience of dealing with all types of Medical Negligence cases, including perforation injuries. If you would like to discuss your position, please call Jackson Lees who will be happy to discuss your potential claim.

For a free consultation with one of our legal team call us on 0151 647 9381, request a callback at your convenience or email enquiry@jacksonlees.co.uk  Or drop-in to the clinic at our Birkenhead office Monday to Friday 9am to 5pm.