Medical Negligence – the first steps

Medical negligence claims are often complex and they are very different to other types of personal injury claims. It is absolutely vital to find a solicitor who has the necessary medical and legal expertise as well as considerable professional experience of handling medical claims.

In order to succeed in a claim for medical negligence, it is necessary to establish:

1. Breach of Duty: It must be proven that the treating doctor or healthcare professional did something or failed to do something which no other reasonably competent doctor or healthcare professional would have done, or failed to do.
2. Causation: In addition, it must be proven that the Breach of Duty caused an injury or an avoidable worsening in a person’s condition or an outcome which they would not otherwise have suffered.

Investigating a potential claim

The duty is on you to prove your claim. This will usually involve:

1. Discussing the circumstances that led to your injuries and preparing a statement detailing your recollection of events;
2. Obtaining copies of your medical records;
3. Instructing an independent medical expert to review your statement and medical records to provide their opinion on the standard of care that you received.

If the medical expert concludes that the treatment you received fell below an acceptable standard, the next step will be to obtain a separate report dealing with the issue of causation. It is possible for one expert to deal with both breach of duty and causation but, sometimes, two or more reports are required from different experts. These initial investigations can take several months or more, depending on how many reports are required. In some cases, such as a birth injury claim, the initial investigations can take even longer because of the number of expert reports required.

Once these investigations have been carried out, we will be in a position to advise you with much more certainty as to whether or not your claim is likely to be successful. If the expert evidence obtained on your behalf is supportive, a letter of claim will be sent to the defendant, setting out the allegations of breach of duty and causation and providing preliminary details of your injuries and losses. The defendant then has a period of four months to provide a letter of response confirming whether the claim is admitted.

General Damages

This is compensation for the pain, suffering and loss of amenity (called PSLA) that a person has suffered as a result of the medical negligence.

Expert evidence will be gathered to show the nature and extent of your injury and your future prognosis. Sometimes, more than one expert report will be required in order to deal with different aspects of your injury.

Special Damages

This is compensation for the financial loss you may have incurred in the past, or will incur in the future as a result of medical negligence. It can include the cost of medical treatment and equipment, travel and parking, clothing, loss of earnings, paid care or care provided by family and friends, paid help (such as cleaning and gardening) and accommodation costs (either the cost of adaptations or new accommodation).

It may also be necessary to instruct experts to assess the likely value of your financial losses. For example, this may include reports on the cost of nursing care, accommodation costs, specialist equipment, therapies and so on.