Many clients want to understand how they can prove medical negligence. In this article we explain the process.
Q: What is the first step in proving medical negligence?
The first step when proving medical negligence (sometimes also called clinical negligence) is to show that a duty of care existed between you and the healthcare provider. This might be through medical records, appointment logs or other records that confirm you were being treated by the GP clinic, hospital or other healthcare provider that you are looking to bring a claim against.
Q: What are breach of duty and causation, and how do they relate to a medical negligence claim?
The two key elements of medical negligence, the things you must prove in order to make a successful claim, are breach of duty and causation.
- Establishing breach of duty is why step one of the process means proving that you were under a duty of care. It’s the breach of that care that is negligent.
- Proving causation is the other half of the puzzle. This means showing that the treatment you received caused harm to you, and that different medics in the same circumstances would not have given you the same treatment.
Q: How do I prove that my medical treatment involved a breach of duty?
You need evidence to demonstrate that the care you received fell below the accepted standard. There are lots of kinds of evidence, but it might include::
- Expert Testimony: We can arrange for an independent medical expert to review the notes relating to your treatment, and sometimes they will also carry out a medical examination of you to get a better picture of where your treatment went wrong. These experts are then able to testify that the care you received was substandard.
- Medical Guidelines: We can compare the notes and records you’re your treatment to documents outlining standard procedures and care expected in similar situations. If they show that guidelines weren’t followed, that would indicate that your treatment was negligent.
Q: How do you prove causation?
To prove causation, you must link the breach of duty directly to the harm suffered. Evidence includes:
- Medical Records: Showing your condition before and after the alleged negligence, so that medical experts can assess it.
- Expert Reports: Proving that your condition after is better than your condition before, and that the reason for the change is the medical treatment given to you.
Q: What types of evidence are required to calculate damages?
Once your lawyer is confident you’ve got what you need to prove breach of duty and causation, they will need to work out how much you’re claiming for damages. The evidence they’ll need to do this might include:
- Loss of Earnings: Any documentation that shows lost wages, or that you aren’t able to earn as much because of your injury.
- Photographs and Videos: Visual evidence of injuries.
- Witness Statements: Testimonies about the impact of your injury on your daily life.
- Invoices and receipts: for treatments, medications, travel expenses etc.
Q: What is the legal process for a medical negligence claim?
The legal process involves several steps:
- Consult a Solicitor: Firstly you need to talk to a lawyer. Look for a firm that specialises in medical negligence – that way they’ll already know the process, which means they’ll be able to give you better advice and, depending on your circumstances, might even be able to help you get access to settlement money before your claim has finished.
- Pre-Action Protocol: This is an exchange of information intended to try to settle the claim before court. The fees involved with bringing a claim in court are very high, so the hope is always that the claim can be settled before they’re needed. You won’t have to pay the fees either way, but if your case is successful the defendant will. If the case is unsuccessful the fees are covered by insurance.
- Letter of Claim: As part of the pre-action protocol a formal letter outlining your case is sent to the NHS trust or healthcare provider. The defendant will then provide a Letter of Response either fully admitting, partially admitting or denying your claim.
- Court Proceedings: If your case isn’t settled as part of the Letter of Claim process, it may go to court, where both sides will present evidence.
Q: Is there anything else important to know about proving medical negligence?
- Keep detailed records: Maintain a comprehensive file of all medical visits, treatments, and communications. Even if there’s no negligence, this can still be useful to refer to in future.
- If you think there’s been negligence, act quickly: There is a time limit on making a negligence claim. Usually you have three years from the date of the incident or when you first became aware of the harm, but the time limit for children is much longer.