Advice Centre

There are myths about medical negligence claims also known as Clinical negligence cases. In the UK we have access to good medical health care. Most health and medical practitioners are caring and diligent however, sometimes avoidable mistakes can and do happen. The impact of a medical mistake can sometimes have serious consequences on the patient and their whole family.

So let’s demystify commons myths about how Clinical negligence cases can be investigated for the patient and their families. Making a claim can be daunting as there is a relationship of complete trust between the doctor and the patient. The person taking care of the patient has a duty of care not to cause any harm.

What is Clinical negligence?

This happens when a Medical practitioner has breached their duty of care by providing treatment that is below the standard expected of someone of their expertise. The mistake must have caused you or your loved one an avoidable and actual injury and pain. The injury can be physical and psychological. In addition, if you have an injury you may have also suffered a financial loss such as loss of a job, or the cost of care as you are unable to care for yourself due to the medical mistake. Sometimes the lack of treatment or delayed treatment or incorrect treatment can result in a claim.

Why make a claim for compensation if you suffer medical negligence?

The field of medicine is highly complex so when medical mistakes happen the consequences can be serious. Compensation does not put a person back to where they were before the mistake but it can help as the monies will go some way to funding the support and care you may need as a result of the medical negligence.

Compensation will help pay the cost of rehabilitation, the cost of medical care and even the cost of accommodation, if the injury is so serious that the injured person needs to adapt his or her home. It is not possible to recover compensation for what might have happened as a result of medical negligence but it is possible to recover compensation if the injured party suffers an actual loss as a direct result of the medical negligence.

How do you prove Medical negligence?

The Claimant or rather the legal representatives of the Claimant (the victim of medical negligence) will need to prove that the medical practitioner were in breach of their duty of care with the help of supportive and independent medical expert evidence. In addition if that can proved they must also prove causation. It is necessary to prove that not only was the medical practitioner in breach of their duty of care but as a direct result of that breach the Claimant suffered an actual injury and loss, this is known as proving causation. It is also known as the BUT FOR test where but for the negligent care or lack of care the victim would not have suffered harm. Unless the Claimant can prove breach of duty of care and also causation the claim will not be successful. Sometimes, a victim will be able to prove the doctor was in breach of their duty of care but if they cannot prove they suffered any loss/ harm, they will not recover damages as no loss or injury was suffered due to the medical mistake.

Victims of medical negligence may feel let down if the expected treatment did not work. That does not always mean there is a claim for medical negligence as often medical procedures carry risks which should have been explained to the patient before the procedure is undertaken.

Can I make a claim anytime?

No, there are strict time limits in law. There is a three year time limit so the victim can claim compensation within 3 years from the date of the medical negligence or three years from the date of knowledge of the negligence, whichever is the later. For child victims, the three year period starts from their 18th birthday. If the injured party dies then provided the negligence occurred was not out of time, i.e. outside the three year time limit, the limitation date starts from the date of death. See our website for more details but if you or your loved one suspect medical negligence it is always sensible to contact a lawyer who specialises in clinical negligence/ medical negligence immediately so that they can advise you on the time limit.

What if the doctor who caused harm does not work for the NHS can I still make a claim?

All medical practitioners will and should be insured. You can claim medical negligence against a doctor who works for the NHS or even in a private hospital. If the medical negligence claim is against a doctor or medical practitioner working for the NHS then the NHS legal team will defend or agree to settle your claim with your legal representatives. If on the other hand, the doctor works for a private hospital, then his or her insurers will deal with the claim through their legal team. Generally, both parties will try to investigate and resolve the matter but sometimes if the claim is disputed, both legal teams will work hard to prove their clients’ case.

Who can you claim against?

Cases involved substandard medical care can be against any clinician or medical practitioner. This includes those providing medical care at primary care level such as G.P.s and nurses and also those working in the NHS hospitals or even at private hospitals. You could for example, have a medical negligence claim against the following type of expert:-

• Nurse
• A & E
• Dentist
• Optician
• Doctor of any type
• Mid-wife
• Any type of specialist surgeon

There are many different types of medical practitioners against whom can you make a claim.

What type of medical negligence claims can we help you with?

We can help you with claims involving many types of medical specialities such as –

• Orthopaedic errors
• Nursing errors
• G.P. errors
• A & E department mistakes
• Plastic surgery mistakes
• Urology/ oncology errors
• Birth injury related errors
• Brain injury errors
• ENT errors
• Pressure sores
• Negligent care of the elderly in care homes and nursing homes

This is just a sample of the type of cases but there are many medical specialists offering different types of medical care and if there is a medical mistake, quite possibly you might have a right to claim compensation.

Can a medical negligence claim take years to conclude?

Given the time limits set by law, your case should be investigated and progressed in a timely fashion. Sometimes a straightforward case where the defendant admits blame and injury straightaway can conclude within a few months. However, if the case is complex requiring experts in different fields and the case is disputed then this can take a few years to end. Usually, where the case is subject to court proceedings, the court will ensure both parties progress the case in accordance with the court timetable. Gone are the days where cases take decades to settle unless it involves a child for example, where it may take years to gauge the extent of the damage of the child.

How will my compensation be assessed?

Once both sides have reached an agreement whereby it is agreed that the medical practitioner was in breach of their duty of care and as a result you or your loved one suffered actual harm and loss, your lawyers will quantify your losses with the help of expert medical evidence. So in a case where the victim’s spine was damaged due to a medical mistake which results in paralysis the victim may not be able to work again. In that case medical reports from specialists in spinal trauma will be asked to provide a view on prognosis. It will also be necessary to get evidence to support any loss of future income by getting a report from an employment expert.

Damages for pain and suffering are quantified once breach and causation are proved with the help of medical expert reports in the ‘relevant field’.

Damages for financial loss must be supported by these experts as a reasonable financial loss arising directly due to the negligence. So if someone wants to claim the cost of adaptations around the home to make the home mobile friendly for the injured party, then a few quotes should be obtained as there is a duty to mitigate the loss, the means you can only recover what is seen as reasonable and fair.

If I pursue a claim will I automatically get compensation?

There is no automatic right to compensation. You with the help for your legal team must prove a number of things, a. that your case is within the time limit, b. there was a breach of duty of care and c. but for the negligence you would not have suffered the injury and loss that you did. As medical negligence is complex at each stage of the case the merits of the case will need to be assessed as and when new evidence comes to light. A strong case can become weak and a weak case can also be strengthened on further investigation.

How do I pay for my medical negligence case?

Most lawyers will offer to accept your case provided the case has merits or warrants investigation on what is called a no win no fee agreement basis with an insurance cover to meet the cost of expert report fees for example.

The ways to fund the legal costs for a medical negligence cases can be through the following ways:-

• Trade union membership
• A No win no fee agreement and an insurance cover
• Legal aid- this is only available for serious birth injury cases

So what do I do if I think I have a claim?

In the first instant it might be advisable to speak to a specialist Clinical negligence lawyer also known as a medical negligence lawyer. There are firms who have specialist teams of lawyers who work in the field of medical negligence. Having an initial conversation will help you decide what to do next.

You can within 12 months of the alleged negligence send a letter of complaint to the relevant hospital asking them to address your concerns.

How can we help you?

If you or your loved one have suffered due to medical negligence and would like an informal chat with our medical negligence team please give us a call on 0330 107 0107 or contact us by email at clinicalnegligence@imd.co.uk and a member of our team will be more than happy to arrange a call back for a free no obligation and informal chat to see if we can help you or even signpost you as to what your options might be.

To conclude, most people are daunted by the prospect of even complaining if the treatment they received results in an injury. Though medical negligence is complex a specialist lawyer in the field of medical negligence should help you navigate your case from start to finish with care, professionalism and sensitivity. As we deal with victims of medical negligence we have an insight in how emotionally hard and stressful it can be those injured through medical negligence. The impact of a medical mistakes can have a wider impact on the family as well so it is important you instruct someone who deals with such cases.

Our Medical Negligence teams have lawyers who can assist you with the help of a translator if necessary. Our staff speak many languages including English, Polish, Romanian, Russian, Lithuanian, Hindi and Gujarati. We are a professional, friendly and caring team and we consider it an honour to serve our clients.

If you live abroad but the negligence occurred in England and Wales you can still consult us and we will be happy to speak with you to see if we can help. If you have a niggling doubt in your mind as to whether what happened to you or to a loved one was due to medical negligence, it is always sensible to get legal advice immediately from a team of specialist lawyers.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.