Medical negligence is a breach of a legal duty of care by healthcare professionals.
If medical negligence has caused you to suffer harm or injury, you may be able to sue the care provider, whether that’s the NHS or a private healthcare company.
To make a claim, you’ll need to prove that the healthcare professional had a breach of duty towards you, that the standard of care they provided fell below what would be expected from a competent practitioner in their area of expertise, and that this caused you harm.
Types of medical negligence
Medical negligence claims can include issues such as wrongful diagnosis, delayed referrals, carelessness during medical procedures, and prescription errors. It can also cover a failure to gain proper consent from a patient.
Some claims are easier to prove than others. For example, if the wrong dosage of a drug is prescribed causing injury or death. Others are more difficult. Commonly, these can include certain kinds of psychological distress.
Unfortunately, unless it’s a recognised psychiatric injury such as post-traumatic stress or anxiety disorder, damages can’t be awarded. For instance, if your medical negligence claim is based on experiencing grief due to the actions of a healthcare professional, compensation wouldn’t be available.
How medical negligence claims are assessed
Under UK law, healthcare professionals involved in medical negligence claims will be assessed against the “Bolam test”. During this process, their skills will be compared against an average standard of care by other practitioners in the field. But, a recent court ruling has also specified that this body of opinion in itself isn’t enough to win a medical negligence claim. It is also necessary to prove that this opinion is robust.
What will a solicitor ask you?
Typically, medical negligence claims are highly complex.
Your solicitor will need to understand both the medical and the intricate legalities of this specialised area of the law.
Finding a solicitor with experience in this field is important to ensure you have the right support. When you meet with your solicitor, they will start by asking you to tell your story. You will need to provide details on:
- What treatment you received
- When and where the treatment took place
- What happened, including dates and times
- The names of the medical professionals involved, and their job titles
- What you’re unhappy about as a result of their actions
- Impact on you of the injury from negligence – medical, financial, psychological, quality of life etc etc
- Which medical professional was responsible for your care
With all this information to hand, your solicitor will then be able to advise on whether you may have a case.
What is the process of making a medical negligence claim?
If you were over 18 years old when the negligent act took place, you will need to make your claim within three years of the negligent act.
Your solicitor will start to build your case before issuing proceedings. They are looking to present:
- Whether medical negligence has occurred from a legal perspective
- What physical or psychological damage has been caused as a result of the alleged negligence
- Your recovery time as a result
- Further medical treatment required
- Additional financial losses resulting from injury, including a loss of earnings, cost of further prescriptions or treatment, and future financial losses as a result of your recovery period
This will require various forms of evidence, including your statement of events, statements from any witnesses supporting your claim and copies of your medical records.
To support your case, you should expect to be examined by medical experts who will then produce reports detailing your injuries and substantiating the assertion that your injuries are a result of the negligence.
With evidence in place, the first formal step is to send a pre-action letter to the defendants, outlining your case.
From the date of sending the letter to the defendant’s solicitors, they will have four months to respond.
If you are suing the NHS, you will probably be dealing with the NHS Litigation Authority or NHS LA. If it’s a private practice, you will need to engage with their solicitors.
How long do medical negligence claims take?
The length of the process will be determined largely by the defendant’s response to your initial notice of claim, whether there is any dispute over for example liability and whether any settlement offers are forthcoming.
How to claim on behalf of someone else
There are many reasons why you could be making a medical negligence claim on someone else’s behalf. Examples include claims relating to a minor (under 18) or someone who lacks the mental capacity and is unable to conduct the legal process themselves. It can also be in cases where a person has died as a result of clinical negligence.
The process in these cases is very similar to those claiming for themselves. You will need to find a specialist solicitor, and outline the details of what happened, providing names, dates and times in the first instance, and the resulting damages. From there, the solicitor will let you know whether you have a case from a legal perspective. The type and level of damages will differ depending on the circumstances of the negligence and your relationship to the victim. Again, your solicitor will be able to advise on your options.
Why you should get professional legal advice
By their nature, medical negligence claims are highly complex. Not only do they deal with medical issues that require expert knowledge to deal with effectively, they also involve intricate legal process. This means that it’s important to get not only professional legal advice from the start, you should also seek out a specialist in medical negligence claims.
Ultimately, any medical negligence claim comes down to what they call a “balance of probabilities.”
Essentially, this means that the case will be assessed on how likely it is, that the defendant was negligent.
A qualified, experienced solicitor will be able to present the best case to prove that you were the victim of medical negligence and entitled to compensation.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
