By Eddie Jones, partner and head of medical negligence, JMW Solicitors.
Navigating the complexities of medical treatment can be challenging, especially when things don’t go as planned. Understanding what constitutes medical negligence and what your rights are in such situations can help you to know whether you need to contact a specialist solicitor.
In this guide, we will explain the concept of medical negligence, by outlining its definition, what incidents are classed as medical negligence, and the process of making a claim.
What is the definition of medical negligence?
Medical negligence, also known as clinical negligence, is a legal term used to describe when a healthcare professional fails to provide the standard of care expected, resulting in significant harm or injury to a patient. The standard of care is measured against what is reasonably expected of a professional with equivalent training and experience in similar circumstances.
It’s important to note that not all medical errors constitute negligence. For medical negligence to be established, it must be proven that the care provided was not just substandard, but that it directly caused significant harm or injury that could have been avoided with proper care. This concept is crucial in distinguishing unfortunate outcomes from actual negligence, ensuring that legal accountability is accurately and fairly applied.
What is classed as medical negligence?
Medical negligence encompasses a range of scenarios where healthcare professionals fail to deliver the standard of care expected, leading to patient harm. This can include, but is not limited to:
- Misdiagnosis or delayed diagnosis: this occurs when a medical professional either fails to diagnose a condition correctly or takes an unreasonably long time to do so. This can lead to a delay in essential treatment, potentially worsening the patient’s condition.
- Surgical errors: these are mistakes made during surgery, such as operating on the wrong site, leaving surgical instruments inside the patient’s body, or performing a procedure incorrectly.
- Medication errors: this includes prescribing the wrong medication or incorrect dose, or failing to consider harmful drug interactions, which can lead to adverse effects on the patient’s health.
- Poor aftercare or follow-up: negligence can also occur post-treatment. This includes inadequate aftercare, failure to monitor a patient’s recovery, or not providing necessary follow-up treatment.
- Birth injuries: mistakes made during childbirth that harm the mother or baby, such as failing to monitor the baby’s oxygen levels or improperly using birth-assisting tools, are also considered medical negligence.
- Failure to inform patients about risks: healthcare professionals have a duty to inform patients about the risks associated with treatments or procedures. Failure to do so is negligence when it results in harm that the patient would have otherwise avoided.
How do you prove a medical negligence case?
Proving a medical negligence case involves a detailed and often complex process, requiring independent evidence that shows that the case meets specific legal tests. These include:
- Establishing a duty of care: the first step is to establish that there was a duty of care owed to the patient. This is generally straightforward in medical contexts, as healthcare professionals inherently owe a duty of care to their patients.
- Breach of duty: the claimant must then prove that the healthcare provider breached this duty. This involves showing that the care provided fell below the standard expected of a competent professional in the same field. This requires the opinions of independent medical experts in the shape of reports, which explain what constitutes standard practice in the specific area of medicine involved. and if there was a failure to provide this to the patient.
- Causation: it’s not enough to show that the healthcare provider made a mistake; the claimant must also demonstrate that this error directly caused harm. This is known as causation and can be one of the more challenging aspects to prove. The claimant must establish a direct link between the breach of duty and the injury or harm they suffered.
- Quantifying compensation: finally, the claimant must be able to quantify the compensation. This includes physical harm, psychological impact, financial losses (such as loss of earnings or medical expenses), and future care needs. Accurate and comprehensive documentation, including medical records, expert evaluations, and financial records, is crucial in this phase.
The burden of proof in medical negligence cases lies with the claimant, and the standard of proof is based on the balance of probabilities. This means that the claimant must demonstrate that it is more likely than not that the negligence occurred and caused the harm. Legal representation is highly recommended in these cases due to the complexity of medical and legal issues involved, as well as the need for expert evidence.
How do I make a claim for medical negligence?
Making a claim for medical negligence involves several key steps, each of which is critical to building a strong case. Here’s a general guide on how to proceed:
- Seek legal advice: the first step is to consult with a solicitor who specialises in medical negligence. They can assess the merits of your case, advise you on the likelihood of success, and guide you through the legal process.
- Gathering evidence: your solicitor will help you gather all necessary evidence to support your claim. This includes medical records, witness statements, and expert evidence.
- Funding the claim: discuss with your solicitor the options for funding your claim. Many solicitors offer ‘no win, no fee’ arrangements, also known as conditional fee agreements, meaning you will only pay legal fees if your claim is successful.
- Notification of claim: your solicitor will send a letter of claim to the healthcare provider responsible for the alleged negligence. This letter outlines the details of your claim and the evidence supporting it. The defending party will then have a set period to investigate and respond.
- Negotiations and settlement: the vast majority of medical negligence claims are settled out of court. Your solicitor will negotiate with the defendant’s representatives to reach a settlement that adequately compensates you for your injuries and losses.
- Court proceedings: in the rare cases where a settlement cannot be reached, your case may go to court. Your solicitor will prepare you and your case for trial, including arranging for expert witnesses to give evidence.
- Receiving compensation: if your claim is successful, either through a settlement or a court verdict, you will receive compensation. This compensation can cover medical expenses, loss of earnings, pain and suffering, and any future care needs.
Throughout the process, your solicitor will provide guidance and support, ensuring that you understand each step and that your case is presented as strongly as possible. It’s important to act promptly, as there are time limits for making medical negligence claims. Generally, you have three years from the date of the incident (or from when you first became aware of the negligence) to make a claim. However, the three-year time limit does not start for children until their 18th birthday, and for those without mental capacity, there are no time limits.
What are the benefits of making a medical negligence claim?
Pursuing a medical negligence claim can offer several significant benefits to you and your family. Understanding these benefits can help you to decide whether to proceed with a claim:
- Financial compensation: making a claim can cover the costs of additional medical treatment required due to the negligence, lost earnings if you’ve been unable to work, and any other expenses incurred, such as travel costs for medical appointments. Compensation can also provide for future needs, such as ongoing care, therapy or adaptations to your home.
- Access to justice and accountability: making a claim can bring a sense of justice and closure. It holds healthcare professionals and institutions accountable for their actions, which can drive improvements in healthcare practices and potentially prevent similar incidents in the future.
- Support for rehabilitation and recovery: compensation can facilitate access to the best possible rehabilitation and support services. This might include specialist medical care, physiotherapy, counselling, or other therapeutic services that might not be readily available through the NHS.
Understanding medical negligence is essential for anyone who feels they have been wronged in their medical care. While the process of making a claim can be daunting, it is a crucial step in seeking justice and compensation for the harm suffered. If you believe you have been a victim of medical negligence, it is important to seek legal advice from experienced solicitors as soon as possible.
