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The decision to pursue a medical negligence claim can be a daunting one to take. This is all the more so due to the complicated nature of the law concerning negligence and the process required to have a claim investigated and pursued. Here we aim to provide some basic information about the law involved in medical negligence and the process of investigating and pursuing a claim. Please contact us to discuss your claim further.
In the aftermath of medical treatment or an unexpected family bereavement you will be overwhelmed by confusion. It is important for you to be provided with realistic expectations from the outset of what a complaint or legal claim would achieve. The key is that you ask a specialist solicitor the questions you want answered at the outset.
The victims of medical accidents often face a painful and traumatic future. Our aim is to provide help in finding out what went wrong, and how to put things right. Whether you wish to make a complaint, seek an apology or obtain financial security for the future, our role is to help you achieve your goal.
We have a specialist team of lawyers with many years experience in pursuing claims against NHS Trusts, GPs, Private Hospitals and other healthcare providers. We aim to provide advice in a practical and straightforward way on how to bring a claim or seek an explanation.
The information below is intended to give you a brief overview of what a medical negligence claim is and how a claim can be pursued.
If you have concerns about medical treatment that you have received and believe that the treatment may have caused you an injury, please contact us to discuss your concerns further.
In order to bring a successful claim for negligence, you must prove two separate legal tests. First, breach of duty (liability), and secondly, causation.
To establish breach of duty, you must show that the standard of care provided by your healthcare professional, fell below an acceptable level. The care with which you were provided must be care which “no other reasonably competent practitioner” would have provided. In this way, suboptimal or poor care is not necessarily negligent care. The law does not require a medical professional to provide "gold standard" care.
In order to establish breach of duty, it is necessary to obtain expert evidence from a medical professional of the same expertise as your treating practitioner. For example, if you had concerns regarding care from your GP, we would instruct an independent GP expert to review your medical records and advise whether the care or advice your GP provided fell below an acceptable standard.
This part of the test requires you to prove that the breach of duty on behalf of your medical professional, caused you to suffer an injury which you would not have suffered, had the care provided been acceptable.
It is not uncommon to establish breach of duty, but fail to prove that this resulted in an injury. In other cases, however, the breach of duty may have directly resulted in a patient requiring more invasive treatment than they may otherwise have required, or suffering a more prolonged recovery. In more serious cases, the negligent treatment may result in long term or permanent symptoms or even a reduction in life-expectancy. The injury may be so serious that a patient is unable to work or care for themselves.
In order to establish causation, a medical expert of the appropriate specialism will be instructed to prepare a report on causation of injury.
An example of the difficulties that can arise with causation may be as follows. A patient has a fall and breaks their leg. The patient visits a Doctor who negligently fails to correctly diagnose a broken limb. The patient continues to have pain and therefore seeks a second opinion 2 weeks later. The second Doctor makes the correct diagnosis and provides the correct treatment. Despite receiving the correct treatment, the patient continues to have symptoms of pain from the broken leg. The patient wants to bring a claim against the first Doctor believing that the delay in receiving treatment caused the ongoing symptoms.
The patient’s solicitors instruct an orthopaedic surgeon who concludes that the first Doctor’s failure to diagnose the broken leg was a breach of his duty of care. This meant that the patient suffered a 2 week delay in receiving correct treatment. The Orthopaedic expert is then asked to consider what injury resulted from this delay and whether the 2 week delay caused the patient’s ongoing symptoms. The orthopaedic expert concludes that the patient had worse pain during the 2 week delay but that the patient's ongoing symptoms are the result of the complexity of the original fracture injury rather than any delay in commencing treatment. The patient can only claim compensation against the first Doctor for the increased pain during the 2 week delay. This will only be a very small sum. The patient cannot succeed in claiming compensation for his ongoing symptoms.
If you can establish both breach of duty and causation, you are entitled to Compensation for the resulting injury. Compensation is broadly divided in to two categories. The first category is called General Damages. This is compensation for your pain and suffering which has resulted from the physical and/ or psychiatric injury. The second category is Special Damages. This is compensation for financial losses and expenditure which you may have incurred as a result of your injury. This can be anything from loss of earnings to medical expenses, the cost of care and assistance, equipment or travel costs. It can include costs which you have already incurred and, in the case of ongoing or permanent injury, costs which you will incur in the future. Compensation for financial loss is often by far the most valuable part of a claim.
Clinical negligence claims can be complex and can take a long time to reach conclusion.
In the majority of cases, the following steps will be taken in order to investigate a claim;
a) Full medical records are obtained from before and after the alleged negligence including GP records.
b) An independent medical expert is instructed to report on breach of duty.
c) An independent medical expert is instructed to report on causation (this can sometimes be the same expert as the expert on breach of duty)
d) If the medical reports support a claim for both liability and causation, we will consider the value of your claim, and a Letter of Claim will be sent to the Defendant setting out the allegations of negligence;
e) the Defendant has 4 months under the Court rules to investigate our allegations and respond, indicating whether liability is admitted or denied;
f) Whilst a response is awaited, we will begin to assess the value of your claim. A medical report addressing your condition and future prognosis will be obtained. This will either be a relatively simple process or, depending on the nature, severity and complexity of your injury, a more involved process involving numerous different experts and documents.
g) If liability is admitted, and it is possible to place a value on your claim at an early stage, negotiations for settlement are likely to take place.
h) If liability is denied or if there is a long process required to value your claim or a dispute about the value of your claim, court proceedings will be commenced. This does not necessarily mean your case will go to trial. In fact, very few clinical negligence cases go all the way to a trial.
During the course of your claim it will be necessary to instruct and rely upon medical experts and sometimes a barrister will also become involved.
In clinical negligence, it is vitally important to ensure that the most appropriate and experienced experts are appointed to assist in your case.
Experts are independent and their duty is to the Court, not to the party instructing them. We have an extensive database of medical experts of every specialism who can assist with your claim.
The choice of medical experts and the number of experts required, will depend upon the nature of your claim and your injury.
If and when your claim reaches the stage where it becomes necessary to embark upon Court proceedings, we will instruct a specialist clinical negligence barrister to represent you. Barristers are instructed to advise in conference and draft the necessary formal Court documents which are served on your opponent. Over the years, we have developed excellent working relationships with many of the top clinical negligence barristers in England and Wales, which ensures that you receive the very best advice and representation.
Funding Your Claim
This is understandably a question which will be at the forefront of your mind. Having suffered an injury which may well have affected your income, you are unlikely to be in a position to pay for the legal costs involved in investigating and pursuing a claim. Certainly, the costs involved in clinical negligence claims can be substantial. There are normally options open to you which will enable you to have your case investigated and pursued at no cost to you.