Gallbladder surgery negligence claims

NHS guidance describes gallbladder removal as a common and safe procedure. Most people have keyhole surgery; you can usually go home the same day and may be able to return to work 1 to 2 weeks later. When recovery does not go that way, for example because of a bile leak or an injury to a bile duct, people understandably ask whether something went wrong in theatre or afterwards. This guide explains the recognised risks, the legal test for negligence, consent, the evidence you need, how claims are handled in England, Wales, Scotland and Northern Ireland, and the time limits. We are an independent information service, not a law firm. If you are unwell now, get medical help first.

The operation and its recognised risks

NHS guidance says gallbladder removal is often recommended for gallstones that cause problems such as severe or frequent tummy pain. Most people have keyhole surgery (laparoscopic cholecystectomy): the surgeon makes small cuts in your tummy, passes in a thin tube with a camera, and removes the gallbladder using small surgical tools. Open surgery, with a single larger cut, is only used if the gallbladder is very inflamed or it is not possible to remove it using keyhole surgery.

As with any operation there are risks. The NHS lists:

• blood clots or deep vein thrombosis (DVT);
• wound infection;
• damage to internal organs or the bile ducts, the small tubes that connect the gallbladder to the liver, which may need further surgery;
• bile leaking into the tummy, which is rare but needs another operation to drain the bile; and
• gallstones left in the bile ducts or tummy, which can cause pain and jaundice (yellowing of the skin and whites of the eyes).

Some people have nausea, vomiting, indigestion, tummy pain or diarrhoea afterwards, sometimes called post-cholecystectomy syndrome, which usually improves soon after the operation. The NHS advises asking for an urgent GP appointment or using NHS 111 for severe or worsening pain, yellow skin or eyes, or a very high temperature, and calling 999 for pain and swelling in the leg with difficulty breathing or chest pain.

When a complication becomes negligence

Because these are recognised risks, the fact that one happened does not prove negligence. For treatment, the courts ask whether what was done was accepted as proper by a responsible body of medical opinion. In England and Wales this is the Bolam test; in Scotland it is the equivalent test from Hunter v Hanley, as the UK Supreme Court explained in Montgomery v Lanarkshire Health Board. The expert opinion relied on must also be capable of standing up to rational analysis.

In a gallbladder case, questions an independent surgical expert may be asked to consider include:

• whether the decision to operate, and the choice of keyhole or open surgery, was reasonable;
• whether the operation was carried out in a way a responsible body of surgeons would accept, especially if a bile duct or another organ was injured;
• whether signs of a complication, such as a bile leak, jaundice or infection, were recognised and acted on in reasonable time; and
• whether you were discharged, followed up or brought back appropriately.

You also have to show causation: that the negligence caused harm you would not otherwise have suffered, such as further operations, a longer recovery or lasting damage. Under the clinical disputes protocol, a letter of claim must summarise the facts, including the alleged adverse outcome and the main allegations of negligence, and describe your injuries, present condition and prognosis.

Consent: were you told about the risks?

NHS guidance says that for consent to be valid it must be voluntary and informed, and the person consenting must have the capacity to make the decision. Being informed means being given information about what the treatment involves, including its benefits and risks, whether there are reasonable alternatives, and what will happen if it does not go ahead.

The leading case is Montgomery v Lanarkshire Health Board (2015), a Scottish appeal decided by the UK Supreme Court. It held that a doctor is under a duty to take reasonable care to ensure the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. A risk is material if a reasonable person in the patient's position would be likely to attach significance to it, or the doctor is or should reasonably be aware that this patient would. The court added that the duty is not met by bombarding the patient with technical information, let alone by routinely demanding a signature on a consent form.

A consent claim still has to show that the failure to warn made a difference to what happened to you, which a solicitor will explore with you in detail.

Evidence to gather

• Your medical records. Under the clinical disputes protocol, copy records should be provided within 40 days of the request, at no more than the statutory charges.
• The operation note, consent form and discharge summary, including any record of complications or a change from keyhole to open surgery.
• GP and later hospital records showing what happened after discharge, including any further operations or procedures.
• A symptom diary with dates, pain, temperature, any yellowing of the skin or eyes, and when you sought help.
• Records of your losses, such as time off work, travel to appointments and care from family.

You may also get information from the hospital itself. In England, registered providers have a statutory duty of candour: they must act in an open and transparent way with patients and, as soon as reasonably practicable after becoming aware of a notifiable safety incident, notify the person concerned. Scotland has its own duty of candour procedure for unintended or unexpected incidents. A complaint or investigation can give you answers, but keep an eye on the time limit while it runs.

How a claim is handled across the UK

In England and Wales, the Pre-Action Protocol for the Resolution of Clinical Disputes applies to claims against hospitals, GPs, dentists and other healthcare providers, both NHS and private. The defendant should acknowledge the letter of claim within 14 days and give a reasoned response within four months, and proceedings should not be issued until four months after the letter of claim. The protocol does not change the statutory time limits, and it recognises that a claim may have to be started before the steps are complete, in which case the parties should ask the court to pause it. For Scotland, see our guide to medical negligence claims in Scotland.

Time limits

In England and Wales, most clinical negligence claims must be started within three years of the negligence or, if later, your date of knowledge: when you first knew the injury was significant, that it was attributable to the act or omission said to be negligent, and who the defendant is. You can be treated as knowing what you could have found out with medical or other expert advice it was reasonable to seek. For a child, the three years usually run from their 18th birthday. For someone who lacks capacity to conduct legal proceedings, time runs from when they stop lacking capacity or die.

Scotland and Northern Ireland also use three-year periods with their own rules, including for children. Courts in all three jurisdictions can allow a late claim where it would be equitable, but that is discretionary and should not be relied on.

The checker gives a first indication only. Because the protocol steps take months, speak to a solicitor well before any deadline.

Frequently asked questions

Related guides: medical negligence claims, medical negligence claims in Scotland, hernia mesh claims, retained surgical instrument claims, hospital infection claims and premature discharge claims.

Official sources used for this guide: NHS: complications of gallbladder removal; NHS: consent to treatment; Montgomery v Lanarkshire Health Board [2015] UKSC 11; Pre-Action Protocol for the Resolution of Clinical Disputes; NHS Redress (Wales) Regulations 2011, reg. 29; Limitation Act 1980, s.14. This guide is general information about the law in the UK, not legal advice; the law can change, so check your own position with a regulated solicitor.