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Surgical Negligence Claims

England & WalesLast reviewed 18 September 2026

A surgical negligence claim needs proof that the operation, or the care around it, fell below the standard of a competent surgeon and caused harm. A recognised complication of a well-performed operation is not negligence, but failing to warn you of a material risk can be.

Error, Complication or Consent Failure?

Direct Answer: Surgical claims usually fall into three groups: a technical error, a failure in pre- or post-operative care, or a failure to obtain informed consent.

Every operation carries known risks, and their occurrence does not prove negligence. A claim arises if the surgeon fell below the standard of a reasonably competent surgeon, for example by damaging a nearby structure through poor technique, failing to spot a complication, or discharging you too early.

Consent is judged differently. Under Montgomery v Lanarkshire Health Board [2015] UKSC 11, the doctor must take reasonable care to ensure you understand any material risks of the recommended treatment and any reasonable alternatives, judged from the patient's perspective, rather than by what other doctors would say.

Never Events

NHS England defines Never Events as serious incidents that are wholly preventable, such as operating on the wrong site, leaving a swab or instrument inside a patient, or giving the wrong implant. These are not proof of a successful legal claim on their own, but they usually indicate clear breach, so the case turns on the harm caused.

Compensation

Compensation covers pain and suffering, the cost of corrective surgery and rehabilitation, lost earnings and care needs. Where the harm is permanent, future losses are adjusted using the Personal Injury Discount Rate, currently +0.5%.

Frequently Asked Questions

Is a complication after surgery the same as negligence?

No. Many complications are recognised risks that occur even with good technique. A claim needs evidence that the surgery, or the care around it, fell below the standard of a reasonably competent surgeon.

What if I wasn't told about the risks?

You may have a consent claim if you were not told about a material risk or reasonable alternatives, and had you been told you would probably have chosen differently. Montgomery sets the test.

What is a Never Event?

A serious, largely preventable patient safety incident, such as wrong-site surgery or a retained foreign object, on NHS England's Never Events list. They point to clear failings, though you still need to prove harm and its value.

Can I claim for the cost of putting it right?

Yes. Corrective surgery, rehabilitation, and, where it is reasonable, private treatment, can be claimed as financial losses, alongside compensation for pain and suffering.

How long do I have to bring a surgical negligence claim?

Generally three years from the date of the negligent act or, if later, your date of knowledge: when you first knew the injury was significant and connected to the care you received. The clock works differently for children, who usually have until three years after their 18th birthday, and for people who lack mental capacity. A court has a limited discretion to allow late claims, but you should not rely on it.

Can I bring a clinical negligence claim on a no win no fee basis?

Usually, if a solicitor thinks the claim has reasonable prospects, because legal aid is not generally available for clinical negligence. Expert reports are a large cost, so many claimants also take out after-the-event insurance. Ask your solicitor how disbursements are covered, and how QOCS protects you from the other side's costs if you lose.

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Where this applies: This page covers England and Wales. The rules in Scotland and Northern Ireland are different.

Sources for this page

Every rule stated above is based on the primary sources below. Each link goes to the legislation, court rule or regulator itself so you can check it. Last verified 18 September 2026.

  1. Courts and Legal Services Act 1990, s.58 (conditional fee agreements)

    The provision that makes CFAs lawful and enforceable. CFAs derive from this section, not from LASPO.

  2. Conditional Fee Agreements Order 2013, arts. 4–5 · in force from 1 April 2013

    Art. 4 caps the success fee at 100% of base costs. Art. 5 caps what may be taken from damages in personal injury at 25% of PSLA plus past pecuniary loss, net of CRU, at first instance.

  3. Civil Procedure Rules, Part 44 (incl. rr.44.13–44.17, QOCS)

    Qualified one-way costs shifting and its exceptions. Rule 44.14 was amended with effect from 6 April 2023.

  4. Limitation Act 1980, s.11 (personal injury actions)

    Three years from the date of the accident or the date of knowledge. Property damage such as a damaged vehicle is a separate claim with a longer six-year period under s.2.

  5. Limitation Act 1980, s.14 (date of knowledge)

    The three-year period can run from the 'date of knowledge': when you first knew the injury was significant and attributable to the act or omission alleged to be negligent. Central in delayed-diagnosis cases.

  6. Limitation Act 1980, s.33 (discretionary exclusion of time limit)

    A court can allow a personal injury claim to proceed out of time where it is equitable to do so. It is a discretion, not a right, and should not be relied on.

  7. Montgomery v Lanarkshire Health Board [2015] UKSC 11

    Doctors must take reasonable care to ensure a patient is aware of any material risks of a recommended treatment and of reasonable alternatives. Consent is judged from the patient's perspective, not by what a responsible body of doctors would disclose (the Bolam test).

  8. NHS England — Never Events

    Never Events are serious, largely preventable patient safety incidents such as wrong-site surgery or a retained foreign object.

  9. Ministry of Justice — Personal Injury Discount Rate (England and Wales) · in force from 11 January 2025

    The rate is +0.5% from 11 January 2025, replacing the former -0.25% rate.

Who wrote and checked this page

Written and published by
Edward & Amaury Solicitors (Edward & Amaury Ltd, company no. 12195443), regulated by the Solicitors Regulation Authority under no. 800525.
Legal review
Checked for England & Wales by Edward & Amaury Solicitors — Solicitors regulated by the SRA (no. 800525) (verify on the regulator’s register).Review is recorded against the firm. The individual reviewer is not named on this page.
Review dates
Last reviewed 18 September 2026. Next review due 18 March 2027.

Fee rules change. California’s medical malpractice fee limits changed on 1 January 2023, and the QOCS rules in England and Wales changed on 6 April 2023. If you spot something out of date, tell us — we publish corrections.

Think you have a claim? Find out for free.

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Where this applies: This page covers England and Wales. The rules in Scotland and Northern Ireland are different.

Sources for this page

Every rule stated above is based on the primary sources below. Each link goes to the legislation, court rule or regulator itself so you can check it. Last verified 2 August 2026.

  1. Courts and Legal Services Act 1990, s.58 (conditional fee agreements)

    The provision that makes CFAs lawful and enforceable. CFAs derive from this section, not from LASPO.

  2. Conditional Fee Agreements Order 2013, arts. 4–5 · in force from 1 April 2013

    Art. 4 caps the success fee at 100% of base costs. Art. 5 caps what may be taken from damages in personal injury at 25% of PSLA plus past pecuniary loss, net of CRU, at first instance.

  3. Legal Aid, Sentencing and Punishment of Offenders Act 2012, ss.44–46 · in force from 1 April 2013

    Ended recoverability of success fees and ATE premiums from the losing party. Did not create or regulate CFAs.

  4. Civil Procedure Rules, Part 44 (incl. rr.44.13–44.17, QOCS)

    Qualified one-way costs shifting and its exceptions. Rule 44.14 was amended with effect from 6 April 2023.

Who wrote and checked this page

Written and published by
Edward & Amaury Solicitors (Edward & Amaury Ltd, company no. 12195443), regulated by the Solicitors Regulation Authority under no. 800525.
Legal review
This page has not yet been through independent legal review. It is written from the primary sources listed below, which you can check directly.
Review dates
Last reviewed 2 August 2026. Next review due 2 February 2027.

Fee rules change. California’s medical malpractice fee limits changed on 1 January 2023, and the QOCS rules in England and Wales changed on 6 April 2023. If you spot something out of date, tell us — we publish corrections.