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Short Notes on Surgical Error 2018 - Dr Mark Burgin

27/01/18. Dr. Mark Burgin BM BCh (oxon) MRCGP considers the elements that should be included in a primer for clinical negligence cases involving Surgical Error.

Surgical operations appear to be comprehensively documented but it is what is missing from the record that will allow the expert to determine liability.

Few decisions are taken by multi-disciplinary teams following a presentation of the evidence and detailed discussion so there may be little evidence of how the decision was made.

It is often easier to demonstrate that consent was inadequate as proving the mistake was caused by negligence if the evidence is not available in the medical records.

The primer should assist the lawyer in determining what evidence will be reasonably required and where and how to access the evidence.


Unnecessary Operations

The clinical decision to operate shows variability leading observers to ask if there are unnecessary operations being performed on patients. (1)

In some cases the decision is taken by junior staff or in an emergency or on limited information but most (elective) surgical decisions are taken in busy outpatients.

There is a range of opinion with some experts interpreting the clinical indications strictly and others taking a broader view of the same evidence.

This argument depends on establishing the clinical indications for that type of operation but if it succeeds then all harm that has occurred is potentially claimable.


Inadequate supervision

Many surgical operations are undertaken by doctors in training, this is because training in the UK typically takes 14 years.

15% of trainees still felt 5 years after graduation that they were asked to undertake tasks that were beyond their capability. (2)

When juniors are learning a new surgical technique they are directly supervised by a senior proficient in the technique until they demonstrate competence to operate solo.

The senior surgeon may fail to step in quickly enough or the junior may fail to ask for help, each causing additional damage to the patient.

The lawyer should obtain the junior’s surgical log where they document their experience in new techniques and the exact arrangements for supervision at the time of the operation.


Poor performing surgeon

League tables for surgeons are available for orthopaedic and cancer specialists and surgery to the bowel, bladder, brain and heart. (3)

The tables contain the number of surgical procedures, survival compared with UK figures and then the surgeon’s surgical practice in general with complication rates.

The figures only refer to the consultant leading the department and not to the junior surgeons who work within that department so some care should be taken in interpretation.

Surgeons have written about the resistance from both the individual and surgical establishment to do what is necessary to stop the poorly performing surgeon. (4)

Some cases have required the lawyers to consider class action to get sufficient evidence against the surgeon which can potentially increase costs.  



Surgical error is not evidence that a breach has occurred but inadequate protocols, supervision of juniors and documentation of the clinical decisions will indicate a breach.

The lawyer should not assume that the surgeon had sufficient experience of a procedure to perform it unsupervised and should ask for training records.

The GMC have a detailed system of assessment for doctors with performance issues that includes review of medical records, interviews with colleagues and patients and knowledge tests.

In most cases of surgical error the quantum will be low meaning that proportionality will apply and the lawyer should make economies. (6)


Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register.

Dr. Burgin can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website


  1. The Kings Fund 2015 Better value in the NHS – report summary

  2. BMA 2016 cohort doctor study

  3. My NHS website Specialities/consultants data

  4. Gwande 2002 Complications – A surgeon’s notes on an imperfect science. Profile books.

  5. GMC Doctors under investigation - performance assessments

  6. Burgin 2016 Top 10 Tips to Cutting Expert Costs in Clinical Negligence

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