This can happen when a surgical error is made during an operation which leaves you with further injuries which you would not have suffered from but for the negligent mistake. Most surgery is carried out with diligence and utmost care but sometimes grave errors do happen. Examples of these can include
- A never event – where the wrong operation is carried out or the operation happens on the wrong part of the body. As for example an arthroscopy of the wrong knee or worse still amputating the wrong limb.
- A foreign object being left in the body during surgery- As for example where the scissors are left inside.
- Infection caused by unsafe hygiene practice such as sepsis or an MRSA.
- Pain caused by failure to provide adequate anaesthetic
- Patient not advised of the risks of surgery
- Nerve damage
- Damage to other organs or limbs during surgery
If a mistake is made during surgery causing you or your loved one further and unnecessary pain and suffering, you might be able to claim compensation. To do this you must prove that the professional standards applied by the surgeon or medical professional was below the standard of care and, as a result you suffered an injury which you would not have suffered but for the negligence.
How to prove medical negligence?
In order to succeed in making a claim the law requires the Claimant to prove
1. That the standard of care received was well below that of a reasonable competent health care professional in that field of medicine. This is known as breach of duty of care.
2. That as a result the Claimant has suffered a physical and psychiatric injury as a direct result of the care they did receive or did not receive. This is known as causation.
Both these tests must be proved in order for a case to succeed so if breach of duty is proved but causation cannot be proved then the claim will not succeed.
What are the time limits in medical negligence claims?
There are strict time limits in law and it is important that if you think there was negligence you seek legal advice at the earliest possible opportunity.
The law allows the Claimant three years from the date of the negligence or from the date of knowledge from when the claimant became aware of the negligence. If the Claimant is not able to confirm the date of knowledge then it is best to assume that the three years period runs from the date of the incident so as to ensure the claim is made within the 3 year Limitation period otherwise the claim will be out of time.
There are exceptions to this time limit-
- For a child claimant who is under the age of 18 the 3 year period does not start to run until their 18th birthday. This means they have until their 21st birthday within which to make a claim otherwise their claim will be out of time. This means their claim must be settled or Court proceedings must be issued before their 21st birthday to avoid the claim being time barred.
- Where a Claimant does not have mental capacity
- Where the Claimant suffers a temporary mental disability then the time does not run until mental capacity returns
Where the person injured dies the three year time limit runs from the date of death provided the original medical negligence claim is not time barred by the time of death.
What are the steps for making a claim?
If you believe you have suffered medical negligence at the hands of the NHS, or any other health care provider, then these are the steps for making a claim:
- Establish that medical negligence has occurred and as a result of which you have suffered damage.
- Make a complaint to the NHS Complaints team or to the relevant G.P. practice or private care provider, within 12 months of the incident taking place or within 12 months of you becoming aware of the negligence, this being within 12 months of your date of knowledge.
- Send a formal letter of complaint, if on receipt of their reply you remain dissatisfied, take legal advice.
- As your Solicitor we will gather evidence of your case before we put forward a civil claim for compensation against the negligent healthcare provider. If your case has merits and the defendant dispute your claim then we may advise you to proceed to Court if we cannot settle the case without litigation.
What is the NHS complaints procedure?
As most cases are against the NHS it is possible for you to submit a complaint within 12 months of the negligence before pursuing a compensation claim. You can do this by sending a letter of complaint yourself to the hospital whom you hold to blame, this will cause the hospital to investigate your complaint and provide a response to your letter of complaint. This is something you can do yourself but if you would like us to assist you then we can do this for a fixed fee. If on reviewing the response we consider you may have an arguable claim then we may agree to waive the fixed fee.
How claims are funded?
There are various ways to fund this claim-
- Legal aid / public funding this is available for some birth injury claims such as cerebral palsy and erb’s palsy claims.
- No win no fee agreement, this is a Conditional fee agreement with the benefit of a before the event or after the event insurance policy to protect the Claimant against any adverse costs
- Legal expenses insurance
- Trade union membership
We can assist you on a no win no fee basis with the benefit of an insurance cover to protect you against any adverse costs.
What to do next?
If you would like to have an informal chat with our Clinical Negligence experts in confidence to see if you have a viable claim then please complete the contact form and we will give you a call back at a time convenient to you or please call/ contact Daxa Patel, Clinical Negligence Partner & Solicitor by contacting us on 0330 107 0107 or email firstname.lastname@example.org. Once we are contacted by you, one of our helpful team members will contact you.