A complication is not an error

Almost every operation carries recognised risks that occur even when everything is done properly. Bleeding, infection, nerve injury, adhesions, an anastomosis that leaks, a graft that fails. These are known complications, they are the reason consent forms list them, and their occurrence proves nothing about the quality of the surgery.

A surgical negligence claim therefore does not ask whether something went wrong. It asks two separate questions. Did the care fall below the standard the law requires? And did that failure make a difference to the outcome? Both must be answered yes, and both must be proved by independent expert evidence from a surgeon in the same field. It is entirely possible, and common, for a claim to clear the first and fail on the second.

The standard applied to a surgeon

Scotland applies its own test, from Hunter v Hanley 1955 SC 200, at page 206. The passage has three parts, and a pursuer must establish all three: that there was a usual and normal practice; that the surgeon did not adopt it; and that the course actually taken was one which no professional of ordinary skill would have taken if acting with ordinary care. A case of that date has no neutral citation and cannot have one.

The third limb is the hard one, and it is where most surgical claims are lost. Surgery frequently admits of more than one reasonable approach. Showing that a different surgeon would have done it differently, or that the operation could have been done better, is not enough. The pursuer has to show that what was done was outside the range of what any competent surgeon in that speciality would have done.

The standard is that of the reasonably competent practitioner in the relevant speciality, judged by the knowledge available at the time. And the Supreme Court confirmed as recently as 2023, in McCulloch v Forth Valley Health Board [2023] UKSC 26, that this professional practice test remains the governing standard for clinical judgment in Scotland.

What surgical claims are actually about

In practice these claims fall into a small number of recognisable groups.

Something done to the wrong place or the wrong patient. Operating on the wrong side, the wrong level of the spine, or the wrong digit. There is rarely a serious argument about breach of duty in these cases. The argument is about what the error actually cost, which is not always as much as it sounds, and occasionally a great deal more.

Something left inside. A retained swab, instrument or fragment. Again, breach of duty is generally the smaller half of the case. The claim turns on the harm caused by the retention and by any further surgery needed to retrieve it.

Damage to a structure that should not have been touched. Bile duct injury during gallbladder surgery, bowel or vascular injury during laparoscopic entry, nerve injury during a joint replacement. These are the most contested claims of all, because many such injuries are recognised complications that occur without negligence. The question is almost always whether the technique used, or the failure to identify the structure before dividing it, was outside acceptable practice.

Anaesthetic failures. Awareness under anaesthesia, airway management, dental damage during intubation, drug or dosage errors.

Failure to recognise and act on a complication afterwards. This is the group people least expect and it is one of the largest. The operation may have been performed impeccably, but a leak, a bleed, compartment syndrome or sepsis was not identified and treated in time. The negligence is in the post-operative care, and it is frequently nursing and junior medical care rather than the surgeon.

Operating when the operation should not have been offered. Where the indication was not there, or where the risks for this particular patient made it unreasonable.

Consent to an operation

A separate and increasingly important route does not depend on any criticism of the surgery at all. It is that the patient was not told what they were entitled to be told before agreeing to it.

The governing case is Montgomery v Lanarkshire Health Board [2015] UKSC 11, a Scottish appeal decided on 11th March 2015. At paragraph 87 the Supreme Court held that “the doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments”. Materiality is judged by reference to what this patient would attach significance to, not by what a body of surgeons would customarily disclose. A signature on a consent form the morning of the operation is not, by itself, evidence that this duty was discharged.

McCulloch v Forth Valley Health Board then settled the question Montgomery had left open, and it matters more in surgery than anywhere else. The duty to explain applies to reasonable alternative treatments. Deciding which of the available options are reasonable is a matter of clinical judgment, governed by the professional practice test in Hunter v Hanley. Only once an option passes that filter does the duty to discuss it engage. So a surgeon who reasonably concluded that a different procedure, or conservative management, was not a reasonable alternative for this patient is not negligent for having failed to raise it.

A consent claim also has a demanding causation element of its own. It is not enough to show that you were not warned. You must prove that, properly informed, you would have made a different decision — declined the operation, deferred it, or chosen the alternative. That is a question about you, and it is examined closely against what you did in fact do at the time.

Proving it made a difference

Causation defeats more surgical claims than breach of duty does, and it is worth understanding before committing years to a case.

The question is not whether the surgery was substandard. It is what would have happened if it had not been. Where a patient was already facing the same amputation, the same stoma or the same loss of function, negligent surgery which merely brought that outcome forward produces a much smaller claim than the injury itself suggests, and sometimes none. Where a delay in recognising a post-operative complication is alleged, the pursuer must prove that acting sooner would probably have produced a materially better result.

This is why an honest solicitor will decline cases that look, to the person who lived through them, obviously strong. The negligence may be real and the loss may still not be attributable to it.

Who the claim is against

If the operation was carried out in an NHS hospital, the defender is the health board itself. Health boards are constituted by order under section 2 of the National Health Service (Scotland) Act 1978, and the order specifies the name by which the board is known. That is why the leading cases are Montgomery v Lanarkshire Health Board and McCulloch v Forth Valley Health Board. The claim is not brought against the surgeon personally, and there is no NHS Resolution in Scotland: boards are indemnified through the Clinical Negligence and Other Risks Indemnity Scheme and claims are handled by the Central Legal Office of NHS National Services Scotland. This is set out in full on claiming against the NHS in Scotland.

If the operation was private, the position is different. The claim lies against the hospital or the surgeon, may be founded in contract as well as in delict, and a surgeon operating privately will normally be covered by a medical defence organisation rather than by any NHS scheme. Independent healthcare in Scotland is regulated by Healthcare Improvement Scotland. Where a patient was seen privately and then treated on the NHS, or the reverse, establishing who is responsible for which part of the care is itself part of the investigation.

The evidence that decides these cases

Surgical claims are unusually document-driven, and a handful of documents do most of the work.

The operation note. Written by the operating surgeon, usually immediately afterwards, it records the findings, the technique and any difficulty encountered. It is the single most important document in the case, and its silences matter as much as its contents.

The consent documentation. Not only the signed form, but any clinic letter recording what was discussed and when. A discussion that took place in a corridor on the morning of surgery is worth considerably less than one recorded in an outpatient letter weeks earlier.

The anaesthetic and nursing records, including the swab and instrument counts, and the observations in the hours after surgery, which are where a missed complication shows up.

Any adverse event review. NHS boards review adverse events under a national framework published by Healthcare Improvement Scotland in February 2025. A review carried out under it is written for learning, not for litigation, and it decides nothing about negligence. It is nonetheless often the fullest factual account in existence, and it should be asked for by name.

Anything produced under the duty of candour. Part 2 of the Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016 and the Duty of Candour Procedure (Scotland) Regulations 2018 require an organisation, where an incident appears to have caused death or severe harm among other listed outcomes, to notify the person affected, give an account of what happened, offer a written apology if wanted, offer a meeting and produce a written report. It is a duty on the organisation rather than the individual clinician, it creates no right to compensation, and Part 2 provides that neither an apology nor any other step taken in compliance amounts of itself to an admission of negligence.

Three years, and when they start

An action for damages for personal injuries must be brought within three years, under section 17 of the Prescription and Limitation (Scotland) Act 1973. The Limitation Act 1980 governs England and has no application here.

The three years run from the injury or, if later, from the date on which the injured person first became aware that the injuries were sufficiently serious to justify an action, that they were attributable to an act or omission, and who was responsible. In surgical cases the later date matters more often than in most, because a patient who is told that a poor outcome is a recognised complication may have no reason to suspect anything until a second opinion, a further operation or a review says otherwise. Awareness includes what could reasonably have been discovered, so the argument is rarely straightforward.

Section 17(3) disregards any period of legal disability. Nonage in Scotland ends at sixteen rather than eighteen, so a child’s own claim ordinarily expires at age 19, and where capacity has been lost the clock may never start at all. Section 19A allows a court to admit a late action where equitable, but it is a discretion, it is resisted, and section 19A(4) removes the right to a jury in any action admitted only by that route. That is the ordinary case. The three-year period can start later under section 17(2)(b) where the relevant facts were not known.

Paying for a surgical claim

These claims are expensive to investigate, because two or three expert reports are needed before anybody knows whether there is a case. Scotland offers more routes to funding them than England does.

Legal aid is available. Civil legal aid is excluded only for the proceedings listed in Part II of Schedule 2 to the Legal Aid (Scotland) Act 1986 — defamation and verbal injury, election petitions, simplified divorce applications and debtor sequestration petitions. Clinical negligence is not among them, and the Scottish Legal Aid Board maintains a medical negligence category in its solicitor finder, which listed 140 firms when checked on 15th August 2026. It is means and merits tested. See legal aid in Scotland.

No win no fee is the other common route, with success fees capped on a sliding scale that includes VAT. See what no win no fee actually means in Scotland.

If the claim fails, qualified one-way costs shifting applies, because these are personal injury actions. Under section 8 of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018, in force since 30th June 2021, the court must not award expenses against a pursuer who has conducted the proceedings appropriately. The exceptions are narrow and are set out on what happens if I lose my case.

There is no compulsory pre-action protocol. The protocol made by Act of Sederunt in 2016 excludes clinical negligence at paragraph 1(d)(i), along with professional negligence and disease. There is accordingly no fixed timetable and no fixed fee in a surgical claim, and no procedural pressure on the other side to respond quickly.

What to do now, in order

Write down the dates. When the operation took place, when you first suspected the outcome was not simply bad luck, and what you were told at each stage. The date of knowledge is a live issue in most surgical claims.

Ask for the full records, and name the operation note. Ask in writing, and ask for the anaesthetic chart, the consent documentation and the nursing observations as well.

Ask whether an adverse event review was carried out, and ask for the report. Ask whether the duty of candour procedure was applied.

Take advice before the second anniversary if you possibly can. Two experts, in sequence, is not a quick process, and the three years do not bend for it.