Types of medical negligence claims
What does a claim involve?
What is medical negligence?
Medical negligence (also known as clinical negligence) is when a doctor or other healthcare professional makes a mistake or fails in their duty of care to you or a loved one, leading to physical and/or psychological injury or even death. Medical negligence can happen due to mistakes, failures and incorrect treatment.
What must be proved?
To be able to bring a claim for negligence, you need to prove 3 things:
- The clinician owed a duty of care to you, your unborn baby or your child, to not cause injury. All clinicians have a ‘duty of care’ towards their patients. This means there are certain standards they must meet.
- The clinician failed in that duty of care by making a mistake that no other responsible clinician in that specialty would have made or that they failed to perform that care with appropriate skill and expertise – a breach of duty
- You must prove that a mistake was made due to ‘substandard treatment’.
- Whether the treatment was substandard is a medical question, and we must ask medical experts trained in the legal process if other responsible clinicians would have made the same decisions or given the same care.
- The breach of duty has caused harm – this is known as causation
- You also must prove that it was the breach of duty (the avoidable mistake or substandard care) that caused the injury, loss, or damage that you are claiming for. In other words, would your injuries have been avoided if the mistake had not occurred?
- It is for medical experts to advise on whether you would have avoided the injury if the mistake or substandard care had not taken place.
How long will it take?
A clinical negligence claim is not quick – the investigations are complex, rely on experts and take time..We will always work as quickly as we can to settle your claim but how long it takes will depend on how complex your claim is.
A clinical negligence claim is made up of two parts:
The first part of a claim is investigating whether there is a claim, gathering the evidence and working out broadly how much a claim is worth. We will get copies of your medical records and take statements about what happened from you and people who know you. The investigations as to whether there is a claim to pursue rely on expert evidence. If an expert or experts agrees that there was a breach of duty that caused harm, we will proceed to the second part. If there is not expert opinion that you have a claim, we cannot proceed any further.
- Court proceedings
The second part is the process after court proceedings start when a court sets a timetable for what must happen and by when – this is when the full case is provided to the other side. If court proceedings are started, you will be known as the ‘Claimant’ and whoever the claim is against is the ‘Defendant.’
The Ultimate Guide to Medical Negligence Claims
What do medical negligence solicitors do?
Medical negligence is a very specific area of law and it is important to ensure that you receive advice from a solicitor who has undergone specialist training and has relevant experience.
A medical negligence claim is not the same as a personal injury claim, and your solicitor should have the necessary legal and medical knowledge in order to best assist you.
In order for a claim in negligence to have reasonable prospects of success, your medical negligence solicitor or lawyer must prove two separate legal tests:
- breach of duty and
To establish breach of duty, your solicitor will need to prove that the standard of care provided by your treating doctor(s) fell below an acceptable level. This is a strict test. You and your solicitor must show that no responsible body of practitioners would have treated you in the same way. So, even if a minority body of practitioners would have acted the same in the circumstances, a claim will fail.
Your legal team will also need to prove causation, i.e. that your condition and prognosis has been detrimentally affected by substandard treatment. They must show that you have suffered symptoms over and above those you would have suffered anyway, due to your underlying condition.
Causation is proven on the “balance of probabilities”, which means 51% or more likely.
What should I do if I think I have a medical negligence claim?
Many people undergo medical procedures and receive treatment on a daily basis which results in an excellent outcome. We are fortunate that our medical care in the UK is of a generally high standard.
However, sometimes things do go wrong which can result in a patient suffering symptoms or injuries which have lifelong consequences. There is a difference between treatment being less than ideal and being ‘negligent’. Sometimes, a poor outcome from treatment cannot be prevented, even in the hands of the most skilled and experienced doctors. Where the care has fallen below an acceptable standard however, the law intervenes to provide a remedy. This area of law is known as medical or clinical negligence.
If you think you have been affected by substandard treatment, please contact one of our medical negligence specialist solicitors.
How much will a medical negligence claim cost me?
Before you commence a claim, your medical negligence solicitor will need to determine how the legal costs and expenses will be funded. The three most common ways of funding a case are:
- You may have existing insurance which would cover the cost of investigating a claim (known as “legal expenses insurance”), which is attached to a household, car or credit card policy. A quick call to your insurers should help verify whether cover is available for investigating your potential claim. If cover is available, we would be pleased to complete the necessary claim form and liaise with the insurers on your behalf. They may have specific requirements regarding funding of expenses in the case, and we can provide estimates of costs involved.
- Legal Aid is now only reserved for children who sustain a serious neurological injury within the first eight weeks of life.
- A No Win No Fee also known as a Conditional Fee Agreement.
Can I get a no win no fee medical negligence solicitor?
In the absence of any existing insurance, your solicitor will consider acting for you under a Conditional Fee Agreement (commonly referred to as a “no win, no fee”). A risk assessment will be undertaken and provided there are reasonable prospects of success we offer No Win No Fee Agreements.
What sort of medical negligence compensation can I expect?
Compensation (often referred to as “damages”) is designed to put you back into the position you would have been in, had the negligence not occurred. Obviously in some circumstances involving permanent injury, this is not possible. Damages are therefore intended to compensate you for the injury itself, and to reimburse financial losses or cover the cost of future expenses.
Compensation consists of two separate elements:
- general damages (a rounded sum in recognition of your pain, suffering and loss of amenity)
- special damages (for specific financial losses and out of pocket expenses, both past and future)
The amount of general damages depends on a number of factors, such as the nature, extent and duration of symptoms. It also depends on how badly you have been affected, and whether there are long-term implications for your employment prospects, lifestyle, hobbies etc.
Special damages can include a variety of expenses such as lost earnings; medication and prescription expenses; travel expenses and costs of private remedial treatment, as well as time spent by family and friends who looked after you or helped with household tasks. In fatal cases, funeral expenses, probate fees, statutory bereavement and loss of dependency can be claimed.
What have previous medical negligence pay outs been?
The level of damages depends on a number of factors.
To read case studies and examples of compensation received by our clients please see our case studies section
What are medical negligence lawyers? Are they the same as solicitors?
‘Lawyer’ is a generic term referring to a member of the legal profession. There are many routes to qualification. Solicitors traditionally obtain a law degree, study an additional year to obtain the LPC and complete a two-year training contract before qualifying to practice.
Legal Executives often study alongside working in the legal profession and gaining valuable hands-on experience. Whichever badge of qualification, you should ensure that your lawyer has the necessary expertise and experience to handle your medical negligence claim. Feel free to ask whether they have dealt with cases similar to your own, or have a look at the profiles on our website for more information about individual lawyers and their respective specialisms.
What examples or cases of medical negligence are there?
The following are common types of claim for medical negligence include:
- GP care (misdiagnosing a condition; prescribing the wrong medication; failing to refer to hospital, or failing to detect serious symptoms such as a heart attack or stroke)
- General Surgery (including gynaecology, urology, keyhole procedures and bowel operations)
- Orthopaedic Surgery (missed fractures; inadequate fixation of fractures)
- Obstetric – mother and baby care (doctor or midwifery care during pregnancy and childbirth; baby complications including cerebral palsy)
- Cancer care (delayed diagnosis and treatment; incorrect treatment)
- Accident & Emergency care (including failure to diagnose heart attacks or strokes; missed fractures; deep vein thrombosis / pulmonary embolism)
- Nursing care (patient falls whilst in hospital; pressure sores, or district nursing mistakes)
- Anaesthetic errors, including awareness whilst under anaesthetic or use of the wrong type of drugs
This is not an exhaustive list and we deal with claims that arise out of many varied fields of medicine.
How do I find the best medical negligence solicitors?
The Law Society of England&Wales (www.lawsociety.org.uk) and the patient charity AvMA (www.avma.org) have specialist accreditation panels for clinical negligence solicitors. It is also important to review the Solicitor’s website to see if they have dealt with cases similar to your own, and ask whether they can cite examples of successful cases they have pursued in the past.
What is the medical negligence claim process?
The majority of clinical negligence cases progress in this way. Your solicitor will:
- Obtain a full copy set of your medical records (i.e. GP and hospitals attended)
- Obtain a witness statement from you, setting out details of your condition, treatment and concerns
- Instruct an independent expert(s) to review your medical records and prepare a report addressing breach of duty and/or causation
- If the expert evidence is supportive, a Letter of Claim will be sent to the Defendant GP/ hospital etc.
- The Defendant will have 4 months to investigate the allegations raised and respond, indicating whether liability is admitted or denied.
- If liability is admitted, evidence is then obtained to quantify the claim and settlement negotiations follow.
- If liability is denied, it may be necessary to embark on Court proceedings.
Will I have to go to Court with a medical negligence case?
Very few medical negligence cases go all the way to a trial at Court – something in the order of less than 5%. In all likelihood therefore, your claim is unlikely to result in a final Court hearing. However, if the Defendant GP / hospital etc denies liability for negligence, it may be necessary for your solicitor to start Court proceedings. This is essentially a series of procedural steps which both parties must comply with, in an attempt to narrow the issues between them.
What is the time limit for making a medical negligence claim?
Time limits are vitally important in claims of this nature. The law provides that a Claimant has a three year window in which to bring a claim for clinical negligence. This three-year period starts to run from the date of the relevant treatment, or within three-years of your “date of knowledge”.
Date of knowledge applies where a Claimant could not have been expected to know their treatment was negligent at the time. An example might be where a GP fails to refer a patient to hospital for tests and they subsequently are diagnosed with cancer, perhaps two or three years down the line. In such a situation, the Claimant is entitled to rely on his date of diagnosis as being his date of knowledge.
If a claim is brought on behalf of a child, they have until their twenty-first birthday to bring a claim.
However, it is important to instruct a solicitor at the earliest opportunity so that events are fresh in your mind and it is easier to obtain disclosure of relevant documentation from treating doctors etc.