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The complete guide to medical negligence

Medical negligence is the name for substandard medical care that has either caused a new medical condition or worsened an existing one.

If you’ve been let down by a medical professional, you likely have many questions about what happened to you and how you can get the justice you deserve. In this supporting guide, we’re taking an in-depth look at one of these questions in particular: what is medical negligence? We’ll guide you through everything you need to know – including what’s classed as medical negligence, how to make a claim, and how much compensation you can receive.

What is medical negligence?

Medical negligence is a type of personal injury claim. It arises as a result of a medical professional providing inadequate care for a patient, which causes an injury or worsens a pre-existing condition.

Each medical negligence case is different and they are often complicated. That’s why instructing award-winning clinical negligence lawyers to prove your medical negligence case is important. Get in touch with us today for a free consultation – we’ll be able to take you through the necessary steps to increase the chances of proving medical negligence in your case.

What is medical negligence in law?

In the eyes of the law, medical professionals have a responsibility to provide an acceptable standard of care to their patients – whether that’s while running tests, giving advice or providing treatment. Yet sometimes, they fail to do this and this can be classed as medical negligence.

Medical negligence is the name of a field of law that protects medical patients. It allows people who have suffered harm during the course of their treatment to claim damages against the professional responsible for the harm.

What is classed as medical negligence?

No two medical negligence cases are the same. The harm inflicted can range from minor to life-changing. In the most extreme cases, the harm is fatal.

Yet, regardless of individual differences, the instances have criteria in common that define them as medical negligence cases. Namely:

  1. A medical or healthcare worker deviated from professional standards during treatment
  2. This deviation directly inflicted harm on the patient

What is the difference between medical malpractice and medical negligence?

Medical negligence occurs when inadvertent injury has been caused as a consequence of a failing in care. This can be due to human error, failing to appropriately concentrate or not being up-to-date with medical practice.

For medical malpractice the treating doctor will have been intentionally reckless in the treatment provided, leading to injury.

Whether the injury has been caused by negligence or malpractice does not distinguish the compensation that can be recovered, as an injured person recovers compensation for the injury sustained rather than by the way the injury occurred.

What are the different types of medical negligence?

There are many forms of medical negligence including:

  • Misdiagnosis or delayed diagnosis
  • Incorrect treatment
  • Surgical error
  • Improper anaesthetic application
  • Prescription error
  • Negligent medical advice
  • Injuries during pregnancy or birth
  • Dental errors
  • Negligent cosmetic care

The above list is by no means definitive. Each case is different, and can potentially incorporate a number of potential issues. If you have concerns in any way about the treatment received this it is important that this is raised with the medical professional, and that you seek legal advice.

Can you sue for medical negligence?

We try to make the process simple when making a claim for medical negligence. We will arrange a free initial consultation to discuss your case. We’ll then let you know whether or not we believe your claim is likely to be successful.

If we consider you have a claim, we’ll begin collecting the aforementioned evidence to try to prove medical negligence has occurred. This includes medical records as well as statements from you and/or witnesses close to you. All of the evidence will then be assessed by our expert solicitors and medical experts to decide if the treatment received was negligent (i.e whether the three tests mentioned earlier can be fulfilled). Following this, your injuries may need to be assessed by an expert so we can assess the extent of the impact of the negligence.

We’ll then begin collecting information and evidence about your care needs and the cost of your rehabilitation, home adaptations or future treatments that you require as a result of your injury. This will allow us to provide an accurate settlement figure for the case.

Your solicitor will then try to resolve the case outside of court, by serving a letter of claim, or letter before action. If the defendant denies negligence, or a resolution cannot be found, there may be a need to issue court proceedings. Most clinical negligence cases do not end up in court, but if your case does reach that stage then we’ll be by your side throughout the process to ensure you’re fully prepared and as comfortable as possible.

Even if court proceedings are initiated, your case may still not go all the way to trial. Settlements can still be agreed before this and there are several stages following the issue of proceedings before trial. Whatever happens, you can count on us to fully support you throughout the process.

Read our guide to find out more about whether you can sue for medical negligence.

What is the punishment for medical negligence?

The purpose of a claim for clinical negligence is to put the injured person back to the position they should have been had the negligent treatment not occurred. Of course this is not possible, and the only way in which the impact of an injury can be minimised is through compensation. Such compensation is not punitive, but based on the losses that have been sustained and will likely be sustained in the future. It will also allow for equipment, treatment and/or assistance to be provided commercially so as to try to minimise the impact of the injury and to provide any support needed. Some compensation is also provided to reflect pain, suffering and loss of amenity caused by the injury.

The civil claim will not automatically lead to any disciplinary issues in relation to the doctors involved in the treatment. Nevertheless it will highlight potential issues with the treatment provider, and pursuing a claim can be a driver for change so that the events do not happen to anyone else in the future.

Who do you report medical negligence to?

If you are dissatisfied about the treatment you or a loved one has received then a complaint can be made to the body that provided that care, whether that be via hospital, GP or otherwise. Every medical provider will have their own complaints process. Details of this should be included on their website.

In Wales there is a concerns process referred to as NHS Redress, in which complaints can be dealt with. Within this an offer of Redress can be made of up to £25,000 if it is found that there have been failings in treatment causing harm. Legal advice can be funded via the hospital in these instances. This scheme is not available in England.

You can seek assistance with making a complaint through the Patient Advice and Liaison Service (PALS), which is an informal confidential help and advice service for patients.

How far back can you claim for medical negligence?

Our healthcare system normally does a fantastic job but sometimes things do go wrong. Whether it’s GP negligence or hospital negligence  if something has gone wrong you may be able to make a medical negligence claim,  but you’ve only got a limited time to do so.

The general time limit for these cases is three years on from the date of the negligent treatment – or three years from when you became aware of the negligence. However, the rules can be complicated, which means in certain cases you could claim long after three years have passed. It’s always best to contact a solicitor in these cases and they can advise you on whether or not the time limit has passed.

There are other limits to bear in mind too. For example, if a child receives negligent treatment, then a claim can be made on their behalf at any time until their 18th birthday. Once they reach 18 years old, the three-year timeline will begin. Those who don’t have the mental capacity to make a claim will not have the three-year rule applied to them at all. Should their mental capacity be regained, then they will have three years from this date to make a claim.

We can offer guidance based on our in-depth knowledge of the claims process. We’ll be with you every step of the way if you decide to claim and will strive to reach a settlement as quickly as possible. For more information on how to make a medical negligence claim,  get in touch using our online form or speak to us directly.

How long do medical negligence claims take?

No two claims are the same, which means it’s difficult to give an accurate time scale for how long your medical negligence claim will take. Rest assured we will do our best to make your claim as efficient as possible, so you can get the compensation you deserve.

Some factors that can influence how long a medical negligence claim will take include:

  1. The severity of the injury
  2. Whether it was caused by a private medical practice or the NHS
  3. How easy it is to gather strong evidence
  4. The number of experts needed, and their waiting lists
  5. How quickly the other party accept blame and agree a settlement amount
  6. Whether treatment is recommended before an accurate prognosis can be determined

In general the most straightforward and quickest of claims will take around 1½ years. However most claims will take a lot longer than this due to the complexities of bringing a medical negligence claim.

How many medical negligence claims are successful?

Medical negligence claims by their very nature are difficult to prove. They can be incredibly complex, and it is therefore important that you instruct an experienced solicitor with specialism in clinical negligence to ensure that your concerns are fully explored.

Expert evidence is required to establish whether there has been a failing in care. There is often a range of opinion as to how to treat a patient in a specific situation. As such the expert needs to hold the view that no body of reasonably competent doctors would have treated the patient in the same way.

Once a failing in care is identified it then has to be established that it has caused some additional harm or injury. This can often be very difficult as an injured person can present with a pre-existing problem, or some treatment would have inevitably been required.

At Hugh James we have a wide breadth of experience in clinical negligence claims, and that enables us to identify potential issues in treatment at an early stage. Whilst this is by no means a guarantee a case is there, our experience in investigating and pursuing clinical negligence claims greatly increases the chances of it being successful.

How to start a medical negligence claim

You must contact a solicitor to start a medical negligence claim. After you instruct them, they’ll begin to make the claim on your behalf. From this point, your solicitor will keep you informed and tell you everything that you need to do.

Our experienced team of medical negligence solicitors know how to guide you through this stressful process. We’ll take the time to understand what you’ve been through, then fight to help you get the answers and compensation that you deserve. Get in touch with us today using our online enquiry form or by calling us on .

How to make a medical negligence claim

The procedure that your solicitor must follow while making a medical negligence claim is described by an official Ministry of Justice document called the

From your perspective, the most important steps are as follows:

  • You will need to provide your solicitor with as much information about the harmful treatment and your resultant losses as you can
  • You solicitor will then get copies of your medical records from the relevant healthcare provider, with your written consent
  • If the records provide evidence that your treatment was negligent, then your solicitor will begin legal proceedings

Read our guide on how to make a medical negligence claim for more information on this topic.

How do I prove medical negligence?

It can be hard to prove medical negligence in some cases. This is because victims of medical negligence must be able to satisfy the following legal tests:

  • Prove that the medical professional or establishment had a duty of care to you
  • Prove that the duty of care has been breached
  • Prove that this breach has directly caused harm to you

Although each case is unique, the types of evidence needed to prove medical negligence remain the same.

What are the 4 Ds of medical negligence?

The 4 D’s in clinical negligence are:

  • Duty
  • Dereliction
  • Damages
  • Direct cause

Duty: It has to be first established that a duty of care is owed. A doctor owes a patient a duty of care when treating them. This duty is to treat them with reasonable care and skill.

Dereliction: This is referred to a breach of duty, and essentially occurs when the care provided falls below an acceptable standard. This will be satisfied if it can be established that no reasonably competent body of doctors, specialising in the field of medicine that was treating the patient, would have acted in the same way.

Direct cause: It then needs to be established that the failing in care has caused the injury/harm. This can be difficult in many clinical negligence claims as some form of injury/harm may have been inevitable in any event. For example if there has been a failing to identify a broken bone, a claim for damages cannot be made for the broken bone, but only by how much the delay in identifying the broken bone has made things worse by.

Damages: It then must be proved what injury and losses have been caused. This can include financial losses caused (or likely to be incurred in the future) by the harm/injury. There must be a loss in order to succeed with a claim for clinical negligence.

Given the intricacies of establishing a claim, it is important that a specialist clinical negligence solicitor is instructed to properly investigate a potential claim.

How much medical negligence compensation can I receive?

Large sums of money are paid out in medical negligence claim settlements each year. According to data published by NHS Resolution, settlement payments for medical negligence claims totalled £2.459 billion in 2021/22.

However, this is no indication of how much your claim could be worth. Broadly speaking, compensation is divided into two categories:

Read our guide to find out more about how much medical negligence compensation you can receive.

What is the average payout for medical negligence?

According to data published by NHS Resolution, the average medical negligence settlement resulted in £1,001-£25,000 paid to claimants in compensation.

However, compensation amounts can reach amounts exceeding £1 million, depending on the severity of the injury and the circumstances of the negligence.

Remember that every medical negligence case is different, as is the potential payout that they’re worth. The best thing to do is to speak to a solicitor. They’ll be able to give you an idea of how much you could receive in compensation.

Examples of medical negligence cases

Medical negligence covers a wide variety of incidents that occur in the health care setting. They can relate to:

  • Failings in the provision of treatment provided (for example if a surgery has gone wrong).
  • Failing to initiate appropriate treatment for an injury or condition.
  • Failing to diagnose an injury or illness.
  • A delayed diagnosis of an injury or illness.
  • Failing to refer on for a second opinion or for further investigations.
  • Delay in implementing investigations or the appropriate treatment.
  • Faling to implement safety measures whilst in a medical environment to reduce the risk of injury.
  • Failing to adequately advise about the risks associated with a treatment/surgery and or alternatives.

Read our guide for more examples of medical negligence cases.

Do I have a medical negligence claim?

Unless you have a wealth of medical and legal knowledge, figuring out whether medical negligence has occurred can be confusing.

Yet, if you feel dissatisfied with the care you’ve received and have suffered as a result of it, you deserve to receive any compensation that you’re entitled to.

That’s exactly why you should consult a solicitor – they’ll be able to tell you whether they think you have a strong claim.


Contact us

Medical negligence claims are complicated and can be difficult to settle. Therefore, it’s important that you have an experienced team of solicitors in your corner to help you through the process.

Our team of solicitors was named Clinical Negligence Team of the Year at the 2020 Personal Injury Awards and shortlisted under the same category for the 2021 Personal Injury Awards.

If you think you’ve suffered from negligent treatment at the hands of a medical professional, we can help you seek the justice you’re entitled to. Contact us today using our online enquiry form or give us a call on .

 

Key contact

Ruth Powell

Partner

Ruth is a Partner and Head of our Clinical Negligence Department. She has exclusively practised in clinical negligence since qualifying in 1995 and has a wealth of experience in complex and high value clinical negligence claims.

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