A guide to clinical and medical negligence

Just about everyone in the UK will, at some point in their lives, need to make use of the country's healthcare services, whether that is through the National Health Service (NHS) or privately. It may be going to see their GP, going to a nearby A&E department in an emergency, or going in to hospital to undergo surgery.

When we do have to make use of healthcare services, we expect everything to be ok. We place a huge amount of trust in the professionals and experts, and can often put our lives in their hands. Usually, everything is fine and our healthcare professionals do an outstanding job. Most medical care in the UK is carried out to an extremely high standard, but there are occasions when mistakes are made. This is called clinical negligence, and was previously called medical negligence, so we will use both terms.

Clinical or medical negligence is when a surgical procedure, hospital treatment or a medical diagnosis goes wrong and therefore mistakes are made, because of either incompetence or lack of judgement from a doctor, surgeon or healthcare professional. Of course, medical professionals are only human, just like the rest of us, and are therefore prone to making errors. But when a mistake is made by a medical professional, the result can have a devastating impact on both the patient and their loved ones.

Clinical or medical negligence can occur in both the NHS or privately, and can result in a range of injuries from mild harm from which the patient will make a full recovery through to serious disability or even death. Clinical or medical negligence generally happens because of mistakes and things going wrong, rather than because of deliberate actions. It is rare for people who work in the health industry to deliberately cause harm to their patients.

Clinical or medical negligence claims can be very difficult to prove. In order to pursue a clinical or medical negligence claim, the claimant has to be able to provide two things. Firstly, that a healthcare professional failed to carry out their responsibilities, and secondly (and crucially) that it was because they failed to carry out their responsibilities that that has caused the claimant to be in the position that they are now in. These are called fault and avoidable harm. We will look at these two things separately.

Fault (Breach of duty)

Fault or breach of duty of care means that the level of care received was below the standard expected for that type of treatment from a reasonably competent and skilled specialist. Or to put it another way, you were not treated in a way that you could reasonably hope to be treated.

When you are treated by a healthcare professional, they have a duty of care to give you the best possible treatment they can. In order for this to be the case, you need to be able to prove that another professional of the same ability would not have made such a mistake in that circumstance.

Avoidable harm (Causation)

This is the second essential part of a clinical or medical negligence claim – there has to be an injury or harm, and you have to be able to show that the negligence caused the injury or harm rather than the original medical condition from which you were suffering. Although this sounds easy, this can be particularly hard to prove when somebody is already gravely ill. If negligence occurred and the professional provided an unsatisfactory service but no injury or harm was caused at all then you are unlikely to be able to claim compensation.

What can you hope to achieve by making a claim?

When you make a claim for compensation for clinical or medical negligence that is all you will get from the process – financial compensation. However, when making a clinical or medical negligence claim, it might not necessarily be just compensation that you are hoping to receive. It might just be that you or your family want an apology for what happened, or the knowledge that by raising this case it will improve procedures in the futures so that other people or families don't have to go through the same thing. Many people don't want to feel that they could have prevented other people being injured or worse if only they had said something. Others just want to see justice being done.

Your solicitor can advise you as to what other options are available to help you to achieve your goals. One example is that you are entitled to make a formal written complaint about the treatment you received, but you must do it within six months of the treatment. Your solicitor can again advise you on this.

What are the time limits?

There are strict time limits when it comes to making a claim for clinical or medical negligence. You usually have to start the process of making your claim within three years of the injury or of when you first discovered that the injury was due to clinical or medical negligence. However, there are different limits for cases involving children, or for cases involving people who lack mental capacity.

However, in practical terms, it is important for you to take action and seek professional legal advice as soon as you possibly can after the clinical or medical negligence has occurred. This will allow investigations to begin at the earliest opportunity, and also means that details of what happened will still be fresh in your mind. After all, a lot of evidence is going to rely on recollection and memory, so the sooner action is taken, the more likely people are to remember accurately.

What will be needed for a claim?

In order to proceed with a claim, it is important to show what impact clinical or medical negligence has had upon you and on your life. This will also ensure that any compensation that is received as a result of the claim will cover any needs you have in the future as a result.

Thorough evidence that will need to be gathered will include detailed statements, full copies of claimants' medical records, any X-rays, and the opinions of experts. Gathering all of this takes time, which is another reason why it is important to seek legal advice at the earliest possible opportunity following clinical or medical negligence taking place.

Do you have to go to court?

A very small minority of cases do end up going to court, but the vast majority of clinical or medical negligence claims are settled outside of court, so don't be put off by this.

What can you claim for?

Your claim can include:

  • Compensation for loss of earnings
  • Medical treatment
  • Care costs
  • Adaptations to your home or the cost of moving to a more suitable home
  • Psychological issues

Everybody's claim will be different, so it is impossible to state how much compensation you can expect to receive from a clinical or medical negligence claim.

What are the funding options?

There can be a variety of options available when it comes to funding your medical negligence compensation claim, which you will need to discuss with your solicitor. These could include an existing insurance policy that you have, a No Win No Fee agreement, or legal aid.

What are examples of medical negligence?

Some of the most common types of medical negligence claims include:

  • Medical misdiagnosis
  • Birth injuries to mother and baby
  • Misdiagnosis or delays in cancer cases
  • Anaesthetic injuries
  • Orthopaedic surgery errors
  • Cosmetic surgery
  • Prescription errors
  • Hip and knee replacement surgical errors
  • Amputation
  • Nerve injury
  • Spinal injury
  • Head or brain injury
  • Dental errors
  • MRSA claims
  • Medication errors
  • Care home or nursing home negligence
  • Negligence claims against GPs, doctors, surgeons, hospitals, A&E departments and NHS Trusts

We will look in more depth and some of these types of medical negligence in subsequent articles.

If you believe that you have been a victim of clinical or medical negligence then please talk to us. We offer a personal service and will meet with you, go through your records and discuss with you face to face the strengths and weaknesses of your claim. We will help you decide whether or not you should proceed with a claim. Pursuing a claim can be extremely complicated so it is important to speak to us as soon as you can. To speak to us, please call 033 33 582 582, or for more information please visit https://www.cooks-solicitors.co.uk/clinical-negligence.aspx