Medical Negligence

Medical negligence (sometimes called clinical negligence) is the term used to describe a situation in which a person has suffered injury as a result of a medical mistake. This is usually because the medical professional has failed to provide the proper standard of medical care.

Medical negligence can happen in a number of situations. Common examples include errors during surgery, misdiagnosis or delay in the diagnosis or treatment of a medical condition, birth injuries (injuries suffered by mother or baby) and medication errors. It can also involve dental negligence and cosmetic surgery which has gone wrong.

Before formally pursuing a compensation claim against a medical practitioner you should make a formal complaint under the NHS Complaints Procedure. This involves setting out in writing the full details of the treatment you have received and the reasons why you are dissatisfied with it. To complain about a GP you must write to the Practice Manager and to complain about a hospital you must write to the Complaints Manager at the Hospital Trust. Following the complaints procedure can be a useful tool for assessing the merits of a potential claim but is primarily intended to give you an explanation of what has gone wrong. We can advise and assist you in formulating a complaint and the response to it will often assist when assessing whether you can make a successful claim for compensation.

In order to succeed in a claim for medical negligence you have to show (‘on the balance of probabilities’) that the standard of care you received fell below the standard expected of a reasonably competent healthcare professional practicing in that specific field (‘breach of duty’) and that you have suffered a physical or psychological injury as a direct result of the negligent act/s (‘causation’).

Causation is often the most difficult part of the case.  For example simplistically a doctor may be found to be negligent for not properly examining a sick child, who is later diagnosed as suffering from meningitis. If the parents decide to take legal action because their child suffers long-term complications, a claim would only succeed if it can be proved that an earlier, proper diagnosis would have prevented the child’s injuries. The fact that the doctor didn’t examine the child properly is not enough on its own. The medical situation needs to be shown to be “worse” than it would have been if the doctor had acted properly.

Medical negligence is a highly specialist area and it is important that you instruct a solicitor with specific experience in this field. The medical negligence team at Morrish Solicitors includes solicitors who are members of the Law Society’s Clinical Negligence Accreditation Scheme and APIL and AvMA.

The main evidence you need for a clinical negligence claim will come from independent medical experts. These are doctors or other healthcare experts who can give an expert opinion on your case. They will base their opinion on the following:

• Your medical records;
• Your statement about what has happened; and
• Any other documents supporting your case.

You may have to be examined by:

• Your medical expert or experts; and
• Experts working for the hospital or doctor you are claiming against.

Understandably people are often worried about the legal costs in pursuing a medical negligence claim and because of their complexity they can be expensive. There are a number of ways to fund your claim, dependent upon your individual circumstances and the facts of your potential claim. We can usually offer you a “no win no fee” arrangement (Conditional Fee Agreement). Under a ‘no win, no fee’ arrangement you will not be charged if your case is unsuccessful. If your claim is successful you will be charged a success fee, but this will be taken from your compensation .We will discuss exactly how your individual claim is to be funded in detail when discussing your claim with you. Morrish Solicitors also have a Legal Aid Franchise which means we have been approved by the Legal Services Commission and can also offer Legal Aid for certain types of cases .We appreciate the importance of ensuring that you utilise the correct funding model that is appropriate for your case and will discuss all available options with you.

Yes there are strict time limits.

Legal proceedings for medical negligence must normally be brought within three years of the date from which you first knew, or could reasonably have expected to know, that you suffered an injury as a result of medical treatment. For injury to children, court proceedings must be commenced before the child reaches 21. There are special rules if the claim involves a mentally incapacitated “patient” who is incapable of managing their own affairs. 

It is critically important that you seek legal advice as early as possible as there is a considerable amount of investigatory work to be done before bringing a formal claim. 

Unfortunately, it’s usually impossible to value a medical negligence claim until we have received an independent expert medical report outlining the nature of the injuries directly caused by the negligence identified in your case. The claim value will depend on many factors including the extent of your injuries, the consequences those injuries may have for you in the short and longer term and the extent of any financial losses and expenses suffered as a result. Some websites purport to value your injuries based on a very simple assessment of your injury eg a broken leg is worth £X. Please note that these valuations are virtually meaningless as the claim for compensation is your claim and your claim alone .We will deal with your claim of a bespoke individual basis and will only suggest the likely value when comprehensive expert report is available  and a proper assessment of your claim can be made. 

Thankfully claims rarely end up with a trial at court. Many cases are settled after all the investigations are completed and before legal proceedings are issued. Even in cases where legal proceedings are issued the majority resolve before a trial commences. There are protocols designed to encourage both sides to settle the matter quickly and to avoid incurring the costs of legal proceedings and trials.

We appreciate that this is an important question but it is often impossible to answer with real accuracy. The reason for this is that the answer is dependent on many factors (which are often indeterminate at the outset) such as whether liability is admitted or not. In some cases, liability is admitted shortly after submission of a letter of claim or even in the reply to the first formal complaint.  In other cases liability is contested from the outset.  In such cases it will usually be necessary to obtain expert evidence commenting on the standard of medical care provided to you. In all cases the length of the claim is influenced by the nature and extent of the injuries sustained.  As a general rule of thumb we estimate that such cases take 2 /3 years to conclude but some will resolve more quickly. Others that involve serious injuries or those few that go to trial may take longer than this.  We will try to provide you with a realistic time estimate when we have sufficient information about your claim to enable us to do so. 

In short, the answer is no, but we understand that for many people, it is the apology that is important rather than the compensation. We aim to obtain letters of apology wherever we can. We appreciate that the aim of a clinical negligence claim is often about recognition that the medical professional made an error and the management of treatment needed as a consequence, rather than simply the pursuit of a money compensation claim.