Proving A Medical Negligence Claim

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. 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

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.

Is it hard to 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

What evidence do I need to prove medical negligence?

Although each case is unique, the types of evidence needed to prove medical negligence remain the same. To support your claim, you’ll need the following:

Medical records

Your medical records will be helpful in assessing the level of care you received and whether this care caused or contributed to any injury that you’ve suffered. The lawyers here at Hugh James can source this information so that we can begin assessing it as soon as possible.

Following review of the medical records, should we consider that your injuries may be linked to medical negligence, then we will have your records assessed by an independent medical expert, who will be asked whether the 3 legal tests above are fulfilled and to provide the necessary evidence for your claim. Should this expert be supportive, we may arrange for you to be examined by them and a further report provided. This will include the extent of the injuries and how they have impacted and will continue to impact your everyday life.

A detailed statement from you

A detailed statement can help to determine when the medical negligence occurred in your opinion as well as set out the impact it has had on your daily life. In your statement, we will ask you to recall each stage of the treatment and inform us when and in what way you consider the negligence occurred. This may be across several stages depending on the type and level of negligence you’ve suffered.

We will then ask you to talk about the impact it has had on your life. This can involve both physical barriers, like getting to your place of work, or mental barriers such as depression and anxiety. This will show us to what extent the medical negligence has impacted you, which will be useful when we come to consider the value of your claim.

Other witness statements

Taking statements from friends and family members can also assist, both to support your allegations of medical negligence and your claims as to how the negligence has affected your daily life . These statements will provide added insight into how you were before and after your injury, which may go a long way in supporting your claim.

Photographs

If the medical negligence has caused a physical injury, then it is helpful to have photographs that support your statement and claim. These could be before and after pictures, to show how the medical treatment has impacted your body.

We understand that medical negligence injuries aren’t always visible on the surface, so don’t worry if you can’t provide any picture evidence.

Expert evidence

We will need to instruct an expert in the same field as the clinician or clinicians who treated you to review your medical records and the other evidence listed above and reach his or her independent view on whether the treatment you received was negligent.

If that expert is able to identify negligence in the course of your treatment, we will need to go on and instruct other experts to provide reports on the extent and severity of damage the negligence has caused.

How can I help?

Medical negligence claims can take a while to reach a settlement, which may leave you frustrated and wanting to do all you can to help with the process. Some additional pieces of information you can provide that can help with the medical negligence claim process, include records of all your medical appointments and what occurred during them.

We would also encourage you to keep receipts and invoices for all the expenses associated with your injury. This includes travel expenses, estimated loss of earnings, private treatment or therapy costs and any equipment or aids you’ve had to purchase. This evidence will help our solicitors to work out an accurate and fair compensation amount for your claim.

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.

Why choose Hugh James for medical negligence claims?

When searching for the right medical negligence solicitors, you’ll want them to guide you through your claim; our expertly trained lawyers can be trusted to do that. They have also been top-ranked by Chambers & Partners and Legal 500 independent legal guides.

We take time to get to know you and learn as much about your injury as possible. This allows us to give you the support you need whilst building up your case, to improve the chances of it being successful and you receiving the maximum amount of compensation you’re entitled to.

Our solicitors are well-placed to help prove medical negligence in your case for many reasons. Here are some of them:

We’re one of the leading injury compensation claims firms for medical negligence in England and Wales
We were named the Clinical Negligence Team of the Year for the second time in succession at the 2020 Personal Injury Awards
We recover over £30 million in medical negligence compensation for our clients every year
In addition to our lawyers, we have a range of highly qualified staff, including a former midwife, qualified nurse executives, welfare benefits advisors, medical records officers, and qualified social workers to ensure your case is likely to succeed
We are accredited by the medical negligence charity Action against Medical Accidents (AvMA) and are regulated by the Solicitors Regulation Authority (SRA)
We have hundreds of positive reviews on Trustpilot, so you can read first-hand why you should choose us as your medical negligence lawyers

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.

The compensation you receive should improve the quality of your life and cover any costs that you’ve incurred since the negligent treatment. This includes:

General damages

This is compensation for the injury you have sustained. It covers any pain, suffering or loss of quality of life caused by the negligence. The level of compensation you receive for general damages will be determined by the severity and longevity of your injury, following a thorough assessment from an independent medical expert.

Special damages

Special damages are designed to reimburse you for any past or future financial losses incurred as a result of your injury.

Past losses include:

Private medical treatment and rehabilitation
Prescription charges/medication
The purchase of aids and appliances
Loss of earnings
Travel expenses
Care costs (including gratuitous care provided by friends and family)
Housing adaptations

Future losses can include:

Future loss of earnings
Loss of pension
Accommodation costs
Future private medical treatment and rehabilitation
Aids and appliances
Care costs (including gratuitous care provided by friends and family)

It’s important to note that these lists are not exhaustive and that other costs that you believe are connected to your injury will be assessed by our experts when you instruct us.

The best way to ensure you recover all your financial losses is to keep a copy of all relevant receipts and invoices so that we can prove what you purchased and how much you spent. We will then use this evidence to try to get you the maximum compensation possible.

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:

The severity of the injury
Whether it was caused by a private medical practice or the NHS
How easy it is to gather strong evidence
How quickly the other party accept blame and agree a settlement amount

Medical negligence claims are subject to time limits. 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.

Your initial consultation will be free and we’ll assess the information you provide to us and tell you if your case has reasonable chances of success. There will be no obligation to go through with your claim from here, but if you do, then we may be able to offer you a Conditional Fee Agreement or “no win, no fee agreement”. This means that you won’t have to pay any legal fees if your case is unsuccessful.

Should you win your case then a success fee and the non recoverable element of your After The Event insurance will be deducted from your compensation amount and all other reasonably incurred legal fees will be recovered from the defendant.

All information regarding the funding of your case will be discussed in full during your initial consultation before you decide to instruct us. We hope this will make you feel more confident in proceeding with your claim to get the compensation you deserve for your injury.

Although the process is similar, proving medical negligence against private medical institutions can be more difficult than the NHS. According to the most recent data from , there were 15,078 claims against the with 77% being resolved without the need for court proceedings, which proves how straightforward many of these cases are. however, making a claim against private hospitals or professionals can be more problematic because of the following:

It can be difficult to find out who owns the hospital you were treated at due to a large number of organisations and individuals being involved
The negligent clinicians may not be employed by the hospital you were treated at. This means they will be insured by an insurance company or professional body. If this is the case, then it will be these organisations that will handle the claim.

We know how scary the thought of going to court may be to you. Fortunately, only a small percentage of claims will go to a formal trial, however, our expert solicitors prepare each case in-depth to ensure we’re ready, in the event that court proceedings are required.

The medical negligence system is designed to try and find a solution without formal court proceedings being required. This helps to save time and money whilst preventing the stress of court for victims of medical negligence.

Should your case go to trial, we will go to great measures to prepare you for court, so you feel as comfortable as possible with proceedings. This means you’ll be fully prepared by our expert lawyers and they will be there for you every step of the way, offering support to you as and when you need it.

If you think that you may have a claim and would like us to help, then Please contact the team today. We will talk through your injury and explain the entire process, so you feel comfortable with us handling your case, and we will be by your side every step of the way.

There’s no obligation to proceed with your claim after the initial consultation but we hope our experience can help you decide on your options and next steps.

Next steps

We’re here to get things moving. Drop a message to one of our experts and we’ll get straight back to you.

Call us: 033 3016 2222

Message us

See all articles

IICSA recommendations: A turning point for child abuse survivors?

Comment

How do I prove medical negligence?

How do I prove medical negligence?

Is it hard to prove medical negligence?