Surgeon’s mistake after accident

I had an accident last summer when a delivery driver’s car hit me and my shoulder was quite badly fractured. The car driver’s insurer admitted blame and had been paying for my treatment. When I was in hospital for surgery the surgeon made a mistake meaning a much longer procedure and due to this my recovery is going to take longer. The insurer’s solicitors are refusing to pay for the impact of the surgeon’s mistake and argue that any related loss is not for them to compensate. Can you give me some information around this scenario so I can discuss what to do with my solicitor? Are they able to refuse to pay for my treatment?

Tony M, Bristol

Answer

We have had quite a few cases where a person has an accident or medical incident during the course of a claim for a previous accident. It is quite a straightforward situation where alleged medical negligence is the second incident.

For medical negligence to count as an “intervening act”, preventing the person responsible for the first accident to pay for the consequences of a second event, then it must be grossly negligent treatment, not merely negligent treatment. An example would be operating on the wrong limb as that is obviously grossly negligent. So the answer in your case will depend on medical expert evidence as to whether or not the treatment received was grossly negligent. If it was not grossly negligent then the driver’s insurer will be responsible for the ongoing issues and losses arising from it.