Claiming Clinical Negligence

Could you begin by telling us what different factors could contribute to Clinical Negligence?

Clinical negligence is sometime also referred to as medical negligence- it covers all medical practitioners. A clinical negligence claim can be bought when the treating clinician fails to provide care, advice or treatment to a reasonable standard of care. Case law has been developed over time and we now know that ‘reasonable standard of care’ means that no other medical practitioner in the same field would have acted the same. You must also show that a patient has suffered an injury because of the treatment provided If you can then you may be entitled to bring a clinical negligence claim for compensation. However, it is important to remember that not all mistakes are negligent and that sometimes patients treatment will go wrong but it will not be anyone’s fault.

What are the some of the most frequently occurring factors of Clinical Negligence?

Clinical negligence claims are wide reaching and could be because of almost any medical treatment received. There does not tend to be a particular trend in cases that we see, but misdiagnosis, delay in diagnosis of cancer, failure to refer and injuries during childbirth to mother and/or baby are common. We also see dental claims, where inappropriate/incorrect treatment has been provided resulting in the patient requiring additional treatment at their own costs.

Could you briefly describe what the rights of the patient entail?

Patients have the right to receive reasonable treatment. Unfortunately, this does not mean gold standard treatment. You have the right to be consulted about your treatment and you must provide consent to undergo treatment. Consent can only be valid if it is given freely (you must not have been influenced by pressure from medical staff, family or friends). You must also be fully informed. You cannot provide valid consent to treatment if you have not been given all the information about what the treatment involves including the risks and benefits. Finally, you must also have capacity to provide valid consent. This means you must not be a minor and you must be capable of understanding the decision that you are making.

Could you describe for us what you believe a medical professional’s duty of care requires?

Every professional, be that a doctor, dentist, nurse, consultant, ambulance worker (the list is not exhaustive) owes a duty of care to the people that they treat, even if they only see them one time. They owe their patients a duty to provide treatment to a reasonable standard of care and skill. To bring a successful clinical negligence claim, you would have to be able to show that no other reasonably competent medical practitioner would have provided advice or treatment in the same way. If you can prove, with independent expert evidence, that the advice or treatment provided by the medical professional fell below a reasonable standard of care, then there may be a claim for clinical negligence.

What evidence, as a patient, would I need to provide in order to prove my doctor has breached their duty of care?

We would request your medial records from any doctor or medical practitioner that has treated you before and after the date of negligence. Then, we would instruct an independent expert to examine the records and provide us with an opinion on breach of duty. Your medical records and the independent expert evidence would be used to prove that the medical professional in question has breached their duty of care towards you.

Are damages to Mental Health considered under Medical Negligence? If so, how is this measured?

Yes. This could be as a direct result of negligent treatment, for example, as a consequence of prescribing the wrong medication for an existing medical health problem. However, it could, also, arise as a knock on effect of other medical negligence, for example, depression caused by a delayed diagnosis of cancer.

There are guidelines which indicate the range of awards for mental health injuries, but often it is necessary to look at the awards made by the courts in similar cases to see what compensation is likely.

It is often possible to get a preliminary payment to cover the cost of therapy, with such therapy bringing about a significant improvement in a client’s mental condition before the case is finalised.

What different options are available for funding my claim?

Public funding, previously known as Legal Aid, is now only available for cases involving birth injuries, particularly cerebral palsy, but even that funding is subject to restrictions.

This means that most medical negligence cases are now funded by Conditional Fee Agreements, also known as “No Win No Fee” Agreements. This means that the client will only have to pay the Solicitor if the claim is successful and compensation has been awarded. However, in these cases, the losing party will be ordered to pay most of those costs, so only a relatively small amount of costs will have to be paid from the client’s compensation.

In theory, a client can fund a claim privately, but medical negligence cases can be very expensive and the risk of losing the case means that it is rarely a realistic option for the client.

What is the difference between general damages and special damages?

General damages mean the compensation payable for the actual injuries, that is to say, the pain and suffering and the general affect upon a person’s life, for example, any restriction on sports and other pastimes.

There are Guidelines, usually updated every 18 months or so, which set the levels for these types of award, but it is often necessary to look at other decided Court Cases to get a clearer idea of the likely level of compensation.

Special damages are the financial loses and expenses that arise as a consequence of the injury. These could include, for example, additional travel expenses attending hospital for treatment and loss of earnings arising as a result of the injuries. It will, also, include less obvious losses, such as the additional care provided by the family. Even though the injured client is not paying for these services, he is entitled to claim almost as much as it would have cost him to arrange professional carers.

How long can the process of filing for medical negligence take and how long should I expect to wait for an outcome?

Generally, medical negligence cases take a long time. This is because there are a number of steps which prolong the process. For example, the law stipulates that GPs and hospitals should provide copies of medical records within 40 days of a request being made, but, often they take much longer – sometimes 6 months or more.

Most cases will take at least 12-18 months to investigate. But for cases that involve Court Proceedings the total time taken is usually around 3-4 years. Cerebral palsy cases may take 10 years or more, depending on the age of the child when the claim starts.

In a successful case, the other party will be required to pay most of the legal costs. However, the process of sorting out the costs is almost like a separate case and means that it can take up to another year or more for everything to be finalised. With regard to the smaller value cases, there are moves to introduce “fixed costs” based on the value of the claim. This may serve to speed up some claims. Nevertheless, it is genuinely difficult to predict the length of a Medical Negligence case at the outset.

Dutton Gregory clinical negligence team is one of the largest in the South, every year their specialist solicitors recover millions in compensation for clients across the country.