A surgical error claim arises when an operation, or the checks and advice around it, fell below a reasonable standard and caused avoidable harm. This page explains the errors behind most claims, how consent is judged and the evidence that matters.
A surgical error claim is a medical negligence claim for harm caused by a mistake before, during or after an operation.
Under the test in Dunne v National Maternity Hospital, you must show that the surgeon or theatre team fell below the standard of a reasonably careful practitioner in the same field, and that this caused your injury.
A recognised complication is not negligence on its own if the operation was done properly and you were warned of the risk.
Most surgical claims involve one of these:
Before planned surgery, you must be told of any material risk: one that a reasonable person in your position would want to weigh up.
The HSE National Consent Policy describes this as the standard the Irish courts apply, and says the duty to warn grows the more elective the operation is.
If you would have refused or put off the operation had you been warned, the missing warning can found a claim even where the surgery itself was done well.
Surgical claims don't go to the Injuries Resolution Board, because section 3 of the PIAB Act 2003 leaves out claims arising from a medical or surgical procedure. For bone and joint operations, read orthopaedics and clinical negligence claims.
Keep a list of extra appointments, with dates and travel costs.
Contact us through our enquiry form, phone, or email. We’ll review your situation, answer your questions, and explain what to expect next. There’s no upfront fee to begin your claim.
Your case will be carefully reviewed by our legal team.
We assess the strength of your claim, advise on the documentation needed, and guide you through key steps such as attending an independent medical examination and preparing the information required for the Injuries Resolution Board (IRB).
Once you decide to move forward, we take care of everything. This includes gathering evidence, contacting the other party or their insurer, submitting your claim to the IRB, managing settlement discussions, and handling any court proceedings if needed.
Paul Kearney founded the practice and leads its medical negligence work in Ireland. He is regulated by the Law Society of Ireland. Read Paul's profile.
Every medical negligence claim needs independent expert evidence. We instruct independent medical experts in the relevant field to report on the care you received and on what difference it made.
We get your medical records and go through them with you, so that you know where you stand before any claim is started.
There are no upfront fees. Before you go ahead, we set out in writing how legal costs work, as section 150 of the Legal Services Regulation Act 2015 requires. No Win No Fee explained.
No. Many operations carry known risks that can happen even when the surgeon does everything right. A claim needs evidence that the surgery, the aftercare or the consent discussion fell below a reasonable standard, and that this caused the harm.
If the risk was one a reasonable person in your position would have wanted to know, and you would have decided differently had you been told, you may have a claim even if the operation was done well.
The HSE National Consent Policy says it is good practice to seek consent well before a planned operation, not on the day.
It is a term for errors that standard safety checks should prevent, such as operating on the wrong site or leaving a swab inside a patient.
Where one of these causes a patient's death, it is a notifiable incident under Schedule 1 of the Patient Safety (Notifiable Incidents and Open Disclosure) Act 2023, and the hospital must disclose it to the family.
Yes. The court still needs independent medical evidence on what the item caused: pain, infection, the operation to remove it and the time you lost from work. That evidence must be in place before proceedings issue.
Nerve injury is a known risk of some operations, so the claim turns on two questions. Was the nerve damaged by poor positioning or technique that a careful surgeon would have avoided, and were you warned of the risk beforehand?
No. Under Part 4 of the Civil Liability (Amendment) Act 2017, an apology or information given during open disclosure is not an admission of liability. The claim is proved from the records and the independent medical evidence.
It changes who answers the claim. For a public hospital, the State Claims Agency manages the claim under the Clinical Indemnity Scheme. For private surgery, the consultant has their own indemnity and the private hospital has its own insurer.
Two years from your date of knowledge: when you knew you had been injured and that the operation may have caused it, under the Statute of Limitations (Amendment) Act 1991.
A retained item can go unnoticed for months, so time may start later than the date of surgery. For a child, the two years start at 18.
No. There are no upfront fees. Before you go ahead, we give you clear written terms explaining how legal costs work, as section 150 of the Legal Services Regulation Act 2015 requires. Read No Win No Fee explained.
Regulated by the Law Society of Ireland
Kearney Law handles only personal injury and clinical negligence claims.
We act for clients across Ireland, including Dublin, Cork, Galway, Limerick, Waterford and Letterkenny. See all the areas we cover.
Contact us to talk to a solicitor about your claim, or request a case review.
Email: [email protected]
Opening Hours:
Monday to Thursday 8am – 8pm
Friday 9am – 5pm
