Medical negligence (and also called clinical negligence) claims are the result of improper care or treatment by a medical professional, such as doctors, nurses and dentists, that results in harm to a person.
This could include:
- A doctor prescribing the wrong drugs
- Mistakes during a surgical procedure causing spinal injury, brain injury or disability
- Birth injuries
- Taking too long to diagnose your condition
- Lack of care while on a ward
The recent spate of hospital scandals in places like North Staffordshire, where 1200 more patients died than expected, which have hit the NHS hard mean that medical negligence claims rose by a huge 20% in just a year, and medical negligence claims continue rising. If you have suffered an injury or loss after treatment in hospital and think you may have a claim, there are a few key questions and considerations to think about first. In this article, we will explore medical negligence, how much you can claim, how far can you go back for a medical negligence claim and of course what is needed for claiming for medical negligence.
When claiming for medical negligence or clinical negligence, you will likely have to prove that any injury or financial loss is directly related to the treatment you received.
Damages awarded to the claimant will likely be the final result of a medical negligence case, and there’s no guarantee that disciplinary action will be taken against the medical professional, nor any improvement of standards of their employer (ie a hospital, or therapy centre).
It should be noted that this article shouldn’t be treated as legal advice – but serves only as an outline to the structure of medical negligence cases. Consult a legal professional for detailed advice.
Breaching the Duty of Care
The Bolam Test determines whether the appropriate amount of care was given by the medical professionals in the event of a medical negligence case. In short, the standards of the medical treatment or care, must be in line with a ‘responsible body of opinion’, and that there is a link between the duty to the patient, and the harm they suffered. Even with an admission of breach of duty by the medical professional, without proof of harm as a result of poor treatment, no damages can be paid.
A breach of duty can come in the form of:
- Poor Treatment
- Incorrect Diagnosis
- Inaccurate Advice
- A promise of successful treatment, and then failing to do so
Medical Negligence in the News
The NHS has come under fire in recent years, having seen a rise of medical negligence claims by 20% in just a single year. It is suggested that they pay out nearly a fifth of their total budget to cover clinical negligence claims every year – equating to a huge £19bn. A huge hole, which the UK taxpayer will be paying.
Are these claims justified, or is it a feeding frenzy?
Some payouts for medical negligence have been as a result of some horrific cases – in some cases patients have starved to death on NHS wards. So while medical negligence solicitors have certain seen their fair share (Irwin Mitchell gained £43m for their clients; Leigh Day & Co, £5.5m) for claims, it seems that on the most part, that they are fully justified. Claiming for clinical negligence is important if you have suffered, and seems to be less of a ‘free for all’ than whiplash claims.
Choosing a Solicitor for Your Clinical Negligence Claim
In such sensitive circumstances, perhaps at a time where emotions are running high, it’s absolutely imperative that you choose the correct legal partner to work with you on the case.
You have a reasonable length of time to start your medical negligence claim (see the FAQs below), so you can spend time researching and speaking to a number of medical negligence solicitors – perhaps in your local area.
The Law Society operate a scheme that rewards excellent medical negligence solicitors with accreditation, so look out for solicitor’s web sites and documentation bearing the following clinical negligence accreditation logo:
Source: Law Society
While the Law Society do reward excellence with accreditation into their scheme, it is always wise to speak to the law firms yourself, and get a feel for their operating procedures, as well as speaking with friends and family for any experiences that they might have had with law firms.
Medical Negligence Claims – FAQs
Q: Can’t I just put in a complaint?
A: You always have the right to complain to the NHS Trust where you were treated, or online at NHS complaints. Doing this may get you an apology, but won’t compensate you for any loss. Making a complaint doesn’t waive your rights to making a more formal medical negligence claim in the future, but if your complaint is very long and drawn out it may affect your right to claim as there are timescales to adhere to.
Q: How long to claim for medical negligence?
A: You have three years from the date of the negligent treatment to start making a claim, or three years from the date you realised that your treatment was perhaps negligent or you became aware of an injury. Three years may seem like a long time, but it’s always best to get the ball rolling as soon as possible.
Q: Are there exemptions to the three year rule?
A: If the person claiming for medical negligence was a child when the treatment occurred, or if the person is an adult with learning difficulties, the three year period can be extended. It’s always best to get professional advice in these sorts of cases.
Q: How far can you go back for a medical negligence claim?
A: As explained above, in most cases you can only go back three years from when the claimant suffered the negligence, but if you have only just become aware of a medical negligence injury, you can go back further. Seek professional legal advice on your particular circumstances.
For children, the limit starts from their 18th birthday, and for those with a mental disorder, the time limit does not commence, until they have regained full mental capacity.
Q: What can I claim for?
A: There is a wide range of different things which fall under the umbrella term of medical negligence. Some of the most common cases brought to court include brain injuries, late diagnosis of serious illnesses, botched surgery, injuries or illnesses caused by poor hygiene or hospital superbugs and abuse of residents in care homes. These are just a few examples of the sort of cases brought to court, so speak to a lawyer to see if what happened to you constitutes medical or clinical negligence.
Q: Is it just the NHS I can make a claim against?
A: Although the vast majority of medical negligence cases are brought against the NHS, you can pursue claims after any sort of medical establishments such as private hospitals, physiotherapists, cosmetic surgeons, dentists or care homes.
Q: Is it difficult to claim against the NHS?
A: The main difficulty people face in claiming against the NHS is proving that their injury or loss is as a direct consequence of the treatment they received. It is easiest to put the claim in the hands of legal experts who can guide you through the gathering of evidence, writing of reports and presenting your case in court.
Q: Will starting a claim affect my treatment?
A: Many patients who are still undergoing treatment in the NHS are understandably worried that starting a claim for compensation will affect the way they are treated in hospital, but there is no evidence that this is the case. This should not put you off claiming what may be due.
Q: Will I have to see lots more doctors and have lots of tests?
A: Again, this will depend on the individual circumstances. In most cases, an independent medical expert will interview and examine you, and write a report detailing the injury and any ongoing effects. This is usually done at a location and time to suit you. You will also be asked to give the experts access to your medical records, and write down as much as you can remember about what happened during the treatment you believe to be negligent.
Q: How much can I claim for medical negligence?
A: It’s very difficult to give exact numbers as every medical negligence claim is different. In cases where a child was injured at birth, the compensation can run into several millions of pounds in order to support the child through their life. In many other cases, the NHS does not disclose the damages which have been awarded. The average compensation awarded by the courts for a medical negligence case is around £94k, with some being as high as £5m – particularly if children if are involved, but seek advice from a legal professional to discuss your individual circumstances.
Q: What evidence do I need?
A: As well as the medical report detailing the injury and the ongoing effects, it is a good idea to start making a list and keeping receipts for all additional expenses incurred as a consequence of the incident. This could be bills for installing a stairlift if you can no longer manage the stairs, costs for carers to help look after you, any specialist equipment you have had to buy, or costs of adapting your home to disabled access.
For a successful claim, you will need to confirm that the medical professional had a duty to provide care without causing injury – this really goes without saying, and then subsequently prove:
- There was a breach of duty during interaction with the professional
- Harm was caused, as a result of this breach
- Physical or emotional damage as a result of harm
- Financial or other losses as a result of the incident(s)
Q: How long will it take?
A: Many cases are concluded within a year of you first picking up the phone and calling the lawyer, but if your case is particularly complex, or if the NHS Trust involved decides to fight the case all the way through the courts, it could take considerably longer – sometimes up to 6 years for larger cases.
Q: Will I have to go to court?
A: In the vast majority of cases – estimated at over 95% – the compensation is agreed without anyone having to set foot in a court room. Going to court is expensive and time consuming and everyone wants to avoid it if at all possible. Always get legal advice before accepting an out of court offer, as legal professionals will be able to advise whether the offer is a sensible one.
Q: Won’t pursuing a medical or clinical negligence claim be very expensive?
A: Nearly all legal firms which operate in the medical negligence claims field do so on a no win, no fee basis. That means you won’t have to pay anything up front to speak to a lawyer and start your claim, and won’t have to pay anything if you lose your case either. It should be noted that due to the expenses of these claims, solicitors will only take on claims that they are almost certain they can win.
You must also consider any costs to produce evidence, which the medical negligence solicitor might require you to give to them, even before they take on the case. These can include reports and scans, which can sometimes be hundreds or thousands of pounds.
Unfortunately, legal aid is no longer available for clinical negligence cases – since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 was enforced in April 2013.
You should check medical insurance to see if the policy includes medical negligence claims.
Q: If I’m sure I have a claim, what is the process?
A: Contacting a solicitor who specialises in medical negligence is of course the first start. After discovering the details of your case, they will begin by sending a letter to the possible defendants, outlining the negligence allegations.
Resources for Medical Negligence Claims
- NHS Complaints
- NHS Litigation Authority
- Citizen’s Advice Bureau – Patient’s Rights
- Action Against Medical Accidents
- Law Society