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Frequently Asked Questions
Medical Negligence (otherwise known as Clinical Negligence) or medical mistakes is a challenging, complex and specialist area of complex personal injury litigation. There is:
- not only the need to investigate the standard of care provided by a very highly specialised and respected medical professional but
- also a need to understand what would have happened if the negligent care, in relation to the illness the patient was consulting their doctor about, did not take place in the first instance.
Medicine is not always an exact science and sometimes a failure to provide acceptable care may not always cause harm.
Regardless of the value of compensation, be it modest damages or substantial damages, and regardless of the nature of the injury be it a modest minor trauma to a catastrophic injury, these cases require significant diligence, analytical understanding of both factual and expert evidence, with a skilful and empathetic support for the claimant and their family.
Any medical professional will say that the basic principle of the doctor -patient relationship is the fundamental duty to take all reasonable care towards a patient. That duty not only applies once a course of treatment starts but extends to the action to take all reasonable steps to get the patient back to their good health. Where there is a breach of that duty and as a result the patient suffers injury and loss, which would have otherwise been avoided, a claim for damages (compensation in negligence) may arise. It is important to note that a claimant cannot be compensated for what they would have suffered, in any event; they will only be compensated for what they have suffered as a direct result of the medical negligence.
Cases will involve the substandard care of any clinician involved in primary to specialist care. This could include care provided by medical professionals in the NHS or in private hospitals.
The issue may be around medical consent, failed or delayed diagnosis and treatment, mismanaged treatment plans, surgical errors, post-operative and rehabilitation issues, prescription and dispensing errors and any other numerous errors that could possibly arise from healthcare.
Although there are a large number of different types of medical specialisms medical negligence could arise from the following:
- Plastic surgery
- General medical practice
- Accident and emergency medicine
- Nursing care
All cases require strong empathetic support and understanding towards those involved.
There will often be certain factual issues, such as symptoms that the patient presented with when they saw their medical practitioner and medical issues such as how a condition may have developed but for the failure to treat it. Where it can be said that something is “more likely than not” it will be treated as a certainty in law, the standard of proof required is basically “the balance of probability”. The claimant must not only prove that the defendant has been negligent, the claimant is required to prove that, as a result of that negligence they suffered “consequential losses”. Consequential losses are essentially those losses that follow as a direct result of the negligent action.
To prove a claim, those lawyers will need full access to the medical records so that the records can be reviewed after that an appropriate medical expert is instructed to comment before the matter can be progressed further. If the medical evidence is supportive then it will be necessary to obtain further medical evidence to support the value of the claim. This is known as “condition and prognosis” medical evidence. It will also be necessary to quantify any other losses, such as loss of earnings, travelling expenses, care claim, future losses, future accommodation costs et cetera.
- The complaints procedure
Although this is strictly not part of the procedure for a medical negligence claim, a good medical negligence lawyer will see the benefit of assisting a claimant in initiating a complaints procedure the potential defendant may have this is not only for the benefit of having a patients concerns addressed but also to see what explanation the potential defendant has to refute the complaint.
The NHS is required to properly investigate and respond to any complaints from patients. The period in which the complaint should be lodged is 12 months from the date of the negligent action or from the date of knowledge.
- Pre-action Protocol Rules
If a solicitor is instructed to deal with a medical negligence claim, then they are required to progress the case by with the rules required under the pre-action protocol for the resolution of clinical negligence disputes, which prescribes a process of frank disclosure of medical records, allegations, heads of claim and evidence with a view to progressing the matter in the best way possible and in a cost effective manner.
Compared to other personal injury cases medical negligence requires factual and often expert evidence to be developed before your lawyer is able to fully understand and present the medical and technical allegations against the defendant. There may be significant factual issues arising between facts presented by the claimant and those recorded by the medical practitioners more often than not there is a need for more than one expert to comment on the case on paper in the form of a medical report and also at a conference with the claimant and other experts, before the claim can be fully understood and then a formal letter of claim can be sent to the defendant.
If the matter cannot be resolved without court proceedings and the case has merits then the only last resort is to commence legal proceedings.
The law allows the claimant three years from the date of the alleged negligence or three years from the date of knowledge, whichever is the later, within which to commence legal proceedings. If court proceedings are not issued within the three year period then the claim will be out of time and the claimant will not be able to pursue the claim. It is important to note that there is a three year limitation period in any personal injury claim. Should the patient’s death occur within the first three years, a fresh three years runs from the date of death so that the administrators of the Estate may continue with the claim. If the claim cannot be settled within the relevant limitation period then court proceedings must be issued before the time runs out. If the claimant is a minor then they have until their 21st birthday within which to issue court proceedings, in other words they have three years from the date of their 18th birthday within which to issue court proceedings, otherwise the claim will be out of time.
In English law the losing defendant pays the successful claimants reasonable legal costs of bringing the claim. If the claimant loses they may be ordered to pay the defendant’s legal costs.
It is therefore important that careful consideration is given to the potential costs liability in any medical negligence claim.
Often claimants will have a legal expenses policy already attached to their household insurance before the negligence occurred, if so there may be a legal expenses insurance cover which provides indemnity. Solicitors can agree to undertake cases on a no win no fee basis (conditional fee agreement) whereby the solicitors fees are only paid if the claim is successful and the insurance can be used to cover any costs liability to the defendant.
If the claimant has an existing insurance cover, that is known as a “before the event” insurance cover if the indemnity is insufficient or the claimant does not have an existing insurance policy then it may be necessary to take out an “after the event” insurance policy, to provide sufficient cover any cost order in favour of the defendant.
If you or your loved one have suffered harm due to medical negligence then we at Ridley & Hall Solicitors have a team of lawyers who can assist. We understand how hard it is for a client to want to complain against those in charge of their health care but when a medical mistake happens which could have and should have been avoided then it is worth exploring if there is a claim for compensation. If you would like to have a free no obligation chat with our team of lawyers please complete our contact form or contact us on 01484 538421 and we will be happy to assist in any way we can.
If you would like to have an informal chat with our Clinical Negligence experts in complete confidence to see if you have a viable claim then please complete our contact form and we will gladly call you back at a time convenient to you or please call Daxa Patel, Medical Negligence Partner and Solicitor on 01484 538421 or email us at email@example.com and we will be happy to help in any way we can.