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What is medical negligence?
The vast majority of people get excellent treatment from health professionals but occasionally things can go wrong. Of course sometimes patients have to accept that complications occur for which no-one is to blame. However, there are times when a patient is injured or their condition is worsened because a doctor or health professional does not take sufficient care or, because they make a mistake. This can be a case of medical negligence (also known as clinical negligence). When a patient suffers an injury as a result of medical negligence, they have a right to claim compensation for their injury.
Making a medical negligence claim
Medical negligence claims are often complex and they are very different to other types of personal injury claims.
If you are unhappy with the medical care you have received you can make a complaint in the first instance. There are several schemes that specifically handle complaints about GPs and hospitals. They allow patients to raise concerns about the treatment they have received and help them to gain a satisfactory response. If you are not happy with the response at this stage, the next step is to request that an independent enquiry is carried out. The Independent Complaints Advocacy Service (ICAS) or the Patient Advice and Liaison Service (PALS) may be able to help you with this. If your complaint is more serious and there is evidence that the doctor treating you was not qualified to treat you properly, the General Medical Council (GMC) may investigate your case. The GMC cannot award compensation — however; many patients feel it is necessary to involve the GMC to prevent the mistake being repeated.
Pursuing a claim
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:
- 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.
- 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:
- Discussing the circumstances that led to your injuries and preparing a statement detailing your recollection of events;
- Obtaining copies of your medical records;
- 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.
There are two main categories of compensation — general damages and special 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.
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.
The vast majority of medical negligence cases are resolved without having to go to court, even where court proceedings have been commenced.
It is vitally important to seek legal advice as soon as possible after the medical treatment, or as soon you become aware that you have suffered an injury as a result of your medical treatment. This is because court proceedings must be commenced (by issuing a Claim Form at court) within three years of the medical negligence occurring.
If you were not aware that you had suffered an injury as a result of the treatment until later, the three years applies from the date that you first became aware of your injury.
Time limits are set by law and are rigidly applied by the courts. It is possible to ask the court for permission to allow the claim to be made after the expiry of the three-year period, but permission is only given in exceptional circumstances.
If a claim is made on behalf of a child, they will have three years from the age of majority which is 18, within which to start court proceedings — in other words, until they are 21 years old.
Funding a medical negligence claim
The cost of investigating and pursuing a medical negligence claim can be very high. However, there are a number of different options available to fund a claim.
You may have an existing insurance policy which covers the cost of investigating and pursuing a medical negligence claim, or we may be able to act under a conditional fee agreement, better known as “no win no fee”. This means that you do not pay anything if your case is unsuccessful.
For more information on funding options, Click here.
We believe that if you or a loved one has suffered an injury as a result of medical negligence or birth trauma, then you should seek specialist advice to see whether a claim for compensation can be made. Very often, people fail to do this because they wrongly assume that there was no medical negligence. We will look at the details of your case and provide expert advice on whether or not you have a claim.
At Novum Law, we have decades of experience in dealing with these highly complex cases. We combine expert knowledge of medical treatment issues with expertise in brain injury, spinal cord and serious injury.
We regularly deal with the following cases:
• Where there has been a failure to treat, or an incorrect diagnosis of a medical condition;
• Surgical errors;
• Hospital infections such as MRSA or C Difficile;
• Failure to obtain informed consent;
• Defective medical products or medicines;
• Accidents involving anaesthesia;
• Cerebral palsy claims;
• Pregnancy, birth and gynaecology claims.
We have recently secured substantial damages for:
• A man who suffered severe brain damage after being given inappropriate blood thinning medication whilst he was in hospital.
• A man who was left with terminal cancer after his doctor failed to recognise tumours in his arm.
• The family of a woman who died of cancer as a result of a failure to diagnose the disease at the time of an earlier assessment.