Medical Negligence

Medical negligence (also known as clinical negligence) is a mistake or omission made by a doctor, nurse, GP, dentist, or other health professional, which falls below a ‘reasonable standard of care’ such that no responsible body of similar health professionals would have acted in that way.

Medical negligence includes claims against NHS Trusts (providing hospital, community and mental health care), the ambulance service, GPs, dentists, pharmacists, opticians, private doctors, hospitals, clinics, nursing homes, the Ministry of Defence, and therapists providing alternative/complimentary medicine.

In any medical negligence claim the Claimant (the person bringing the claim) has to prove four key elements of the case, namely: Duty of Care, Breach of that Duty, Causation and Damage.

Establishing a duty of care is straightforward in medical negligence cases as there will always be a duty owed by a treating doctor (or midwife, dentist or other similar practitioner) towards the patient, that duty being to take reasonable care of the patient.

Next the Claimant has to prove that there has been a breach of the duty of care, known as “negligence”. To do this, it must be proven that the doctor has treated the patient in a manner that no responsible doctor would have done. The law recognises that there may be a number of treatment options available in any particular case, and a doctor will not be considered negligent unless he or she treats the patient outside the range of reasonable treatment.

Causation is often the single most complicated feature of a medical negligence case. In essence the Claimant must prove that the negligent care has resulted in a worse outcome. This is often difficult as it requires a theoretical assessment of how the Claimant would have been had he or she received proper care. By way of example, it may be possible to prove that there has been a delay in the diagnosis of a fracture – but would an earlier diagnosis have made any difference to the treatment which would have been given and so the outcome?

Damage is a term used to describe the injury that has been suffered as a consequence of negligent care and all financial losses and expenses resulting from it.

There are various types of evidence that will normally be required to show that the care you or a loved one received was negligent. This will usually include:

• Your/your loved one’s medical records
• Your/your loved one’s account of what occurred during treatment
• Witness evidence from anyone else who can confirm what occurred during treatment
• Expert evidence from independent medical professionals

Birth injuries are the only type of medical negligence claim that can still qualify for legal aid. This includes if the child has suffered a severe disability due to a neurological injury sustained during the mother’s pregnancy, the birth or the first eight weeks of the child’s life.

The criteria that needs to be met is as follows:

Clinical negligence caused a “neurological injury” to the child and as a result the child is severely disabled (meaning physical or mental disability).

The clinical negligence occurred:

• While the child was in his or her mother’s womb; or
• During or after the child’s birth; and
• If the child was born before the beginning of the 37th week of pregnancy, the period of eight weeks beginning with the first day of what would have been that week; or
• If the child was born during or after the 37th week of pregnancy, the period of eight weeks beginning with the day of the child’s birth.

We will be happy to advise you on your eligibility and the process to apply for legal aid funding.

Before choosing to pursue a claim, it is important to understand the likely time frame to reach a settlement. Typically, it can take up to a year to gather the necessary evidence for a claim and the speed with which we can achieve a resolution will then largely depend on whether the defendant is willing to accept liability and offer a suitable settlement.

Medical negligence claims commonly take around 12-18 months, but it is not unusual for a claim to take 3 years or more to resolve, depending on the circumstances.

This will depend entirely on the circumstances, including how serious the injury or injuries were and the impact on your or your loved one’s health. We will advise you of the likely settlement value at the outset so you have a realistic picture of what level of compensation we may be able to win for you.

There are two main types of damages you can normally claim for medical negligence:

General damages – These cover non-financial losses e.g. compensation for pain and suffering and changes to your lifestyle, such as having to give up a favourite hobby and future financial losses that will be incurred as a result of the injury sustained.

Special damages – These cover specific financial losses which you have already incurred up to the date of settlement e.g. treatment costs, buying special equipment and loss of earnings as a result of having to give up work.

Medical negligence claims can usually be resolved without the need for you to appear in court in most cases. Using the Ministry of Justice’s Pre-Action Protocol for the Resolution of Clinical Disputes it is normally possible to reach a settlement through negotiation and other non-confrontational dispute resolution methods. This means claims can typically be resolved faster and at a lower cost to you while allowing you to avoid the need to attend a court hearing.

In the unlikely event that your case does go to court, you will normally be required to give evidence, but this is not something you should worry about at the outset of your claim.

If the person affected by medical negligence does not have the mental capacity to bring a claim for themselves or if they are a child, you can pursue a claim on their behalf. You will need to be appointed as a ‘litigation friend’ for the person the claim is related to, giving you the legal right to make decisions about their case.

In a case that involves someone who has died as a result of medical negligence the claim can be pursued by their personal representative to recover damages on behalf of their estate and also for their dependants.