Medical negligence occurs when the healthcare you receive falls below the standard of care that should be provided, resulting in harm or injury
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What is Medical Negligence?
When you go to the doctor, you expect to receive proper medical care and to recover from your injury or illness as soon as possible. While this is often the case, healthcare professionals sometimes fail in their duty of care to patients.
This can happen in various ways, such as through surgery mistakes, failure to diagnose an illness, prescription errors or using excessive force during childbirth. If any such actions or omissions result in avoidable harm to the patient, it could be seen as medical negligence and may entitle the injured party to make a claim for compensation.
To learn more about what medical negligence is and how you can claim compensation following negligent care, call 0800 470 0472 today for a free consultation or request a call back.
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Table of Contents
What is classed as medical negligence?
Medical negligence refers to the failure of a healthcare professional to provide the standard of care that a reasonably competent practitioner in the same field would provide, resulting in harm or injury to the patient. This can occur through different actions or omissions, such as:
- Misdiagnosis or delayed diagnosis of cancer or other conditions
- Surgical errors such as wrong-site surgery or leaving foreign objects inside the body
- Medication errors, such as prescribing the incorrect drug or dosage
- Failure to give advice about the risks involved in treatment
- Failure to obtain informed consent from the patient
- Inadequate follow-up care or monitoring
- Birth injuries due to poor care during pregnancy or delivery
- Delays in treatment
- Failure to refer the patient to a specialist
If you or a loved one suffered avoidable harm due to any of these or other types of medical negligence, you might be entitled to compensation, which can include damages for your pain and suffering and related financial losses.
Can I make a claim for medical negligence?
The easiest way to find out what is classed as medical negligence and whether you can claim compensation is through a free consultation with a legal adviser. For your claim to succeed, they will have to prove the following:
- A duty of care. Every hospital, GP or other medical staff looking after you owes you a legal duty of care. They must uphold a reasonable standard of care that is expected of any professional in a similar situation, as dictated by relevant bodies such as the National Institute for Health and Care Excellence (NICE).
- A breach of duty. To have a valid case, your solicitor must prove that the defendant failed to exercise a reasonable standard of skill, care or knowledge when they treated you. The breach could involve an act (doing something they should not have done) or an omission (failing to do something within their duties). Examples include misinterpreting test results or prescribing the wrong medicine.
- Causation. This element establishes the link between the breach of duty and your injury. If the defendant failed to provide reasonable care but this has not resulted in any harm to you, your claim will likely fail.
- Damages. These refer to the physical, mental and financial impact of medical negligence on your life. Damages are supported by evidence such as medical records, witness statements, receipts and invoices.
If all these can be established, your solicitor will help you claim compensation for all the unnecessary pain and suffering you incurred as a result of medical negligence.
How to make a medical negligence claim
If you want to start a claim, the first step you should take is to contact a specialist medical negligence solicitor. They will assess the merits of your case and guide you through every step of the process.
If you have grounds for a claim, your solicitor will help you gather all the medical evidence you need to prove liability. They may arrange for you to receive a review from an independent medical expert and may also advise you to make a complaint with the doctor or hospital that treated you.
Once you have all the necessary evidence, your lawyer will send a letter of claim to the defendant, outlining the details of your case and the compensation amount you are looking for.
If they admit liability, you can begin negotiations without the need to go to court. If they deny liability, your solicitor will issue court proceedings and will be ready to argue your case before a judge if necessary.
What are the most common causes of clinical negligence?
Medical negligence can happen for a variety of reasons, including:
- Insufficient training or lack of expertise of healthcare professionals;
- Overworking, fatigue and burnout;
- Poor communication between doctors, nurses, pharmacists and other medical staff;
- A failure to keep accurate records of patients;
- Errors in interpreting diagnostic tests such as X-rays and CT scans;
- A failure to promptly act on test results;
- Inadequate supervision of inexperienced personnel;
- Lack of sufficient staff and overcrowding, especially in emergency care;
- Poor hygiene standards or safety protocols that can lead to hospital-acquired infections;
- Failure to follow established protocols and guidelines;
- Using faulty or outdated medical equipment;
- Inadequate monitoring of patients during or after medical procedures;
- Failure to obtain informed consent from the patient.
If you want to find out more about what is medical negligence and what can lead to it, do not hesitate to get in touch with an expert medical negligence lawyer for a free consultation.
What can be the consequences of negligent medical care?
Negligent medical care can have a wide range of consequences, including:
- You can suffer an avoidable new injury, which could be due to mistakes during surgery, medication errors or negligent treatment of infections;
- The worsening of your condition due to a delayed diagnosis or misdiagnosis, which is particularly relevant for conditions such as cancer or heart disease;
- You can receive inadequate treatment, which could not address your actual condition and cause further complications;
- Permanent disability or impairment due to negligence that results in nerve damage, organ failure or amputations;
- Chronic pain due to mistreatment of fractures, arthritis or nerve damage;
- Increased recovery time or the need for additional surgeries, therapies and rehabilitation;
- Severe psychological distress that can lead to anxiety, depression, and post-traumatic stress disorder (PTSD);
- Reduced life expectancy due to the progression of a disease to an incurable stage;
- Birth injuries such as cerebral palsy, brain damage or perineal tears affecting the mother;
- Scarring and disfigurement;
- In the most severe cases, negligent care, such as mistakes during surgery or medication errors, can lead to the death of the patient.
How do I prove a medical negligence case?
To make a successful medical negligence claim, you must prove that you have suffered an avoidable injury or that your condition got worse due to substandard medical care. To do this, your solicitor will help you gather the necessary supporting evidence, which could include:
- Visual proof of any physical injuries suffered due to the negligence, such as unnecessary surgery, amputation or scarring;
- Your written account regarding what has happened to you, the impact on your life and your recovery process;
- Medical records of your initial diagnosis and the extra treatments you needed due to the alleged clinical negligence;
- A copy of any consent forms you signed to show whether you were informed about the risks of procedures or treatments and whether you provided consent;
- An independent report from a medical expert in the relevant field can help establish whether the treatment you received fell below the acceptable standard of care;
- Testimony from friends and family who witnessed the negligence you received and how it has affected you;
- You also need proof of financial losses and expenses related to the negligent care, such as payslips, receipts and invoices.
Can I make a claim against the NHS?
The National Health Service (NHS) typically offers patients a high standard of care. However, healthcare providers can sometimes make mistakes, which can have severe consequences for the person receiving the treatment. If you suffered harm due to the negligence of an NHS medical professional, you may be eligible to make a claim for compensation.
All claims against the NHS are handled by NHS Resolution, an independent agency of the Department of Health and Social Care. Each NHS Trust must pay an annual premium to NHS Resolution to cover claims for mistakes made by healthcare professionals within their Trust.
If you win compensation for the harm you suffered, this will come out of the insurance premiums paid by the Trusts and will not affect the funds allotted for patient care. Your claim can also help highlight shortcomings in the healthcare system so that similar mistakes are avoided in the future.
You can also claim compensation if you were injured while receiving private medical treatment. According to the General Medical Council (GMC), independent medical professionals must also hold insurance against personal injuries resulting from a breach of duty. If you make a successful claim, this will be covered by your doctor’s insurance company.
How much compensation for medical negligence?
The amount of compensation you could claim for an injury caused by medical negligence will usually depend on two types of damages included in your claim:
- General damages compensate you for the pain and suffering caused by the substandard care. They could also include loss of companionship, scarring and disfigurement, reduced quality of life and life expectancy. General damages can be challenging to assess and are often guided by the Judicial College Guidelines (18th Edition) and relevant case law.
- Special damages cover financial losses and expenses incurred as a result of medical malpractice. These can include any additional treatment you’ve needed, loss of earnings if you could not work and care costs during recovery.
You can visit our online compensation calculator to learn more about the compensation you could receive for different types of medical negligence.
Can I claim on behalf of a loved one?
Yes, you could make a medical negligence claim on behalf of a loved one if they are:
- A child under 18, as they are not old enough to hire a solicitor and take legal action themselves;
- An adult who qualifies as a protected party, meaning they lack mental capacity under the Mental Capacity Act 2005 and cannot fully understand or make decisions about a claim.
An adult may be considered a protected party if they suffer from:
- Post-traumatic stress disorder (PTSD)
- An intellectual disability such as autism or Down syndrome
- A mental health disorder like schizophrenia
- A severe brain injury or stroke
- A neurodegenerative condition such as dementia
To seek compensation for your loved one, you must first apply to the court to be named as their litigation friend. Once approved, the medical negligence claims process will be the same as with any other personal injury case. You will have several duties, such as signing legal documents and making decisions that are in your loved one’s best interests.
If you win the case, your solicitor will likely set up a personal injury trust in your loved one’s name. This way, the compensation awarded is ring-fenced and will not affect their entitlement to state benefits.
Time limits to make a medical negligence compensation claim
The time limit to make a medical negligence compensation claim is set by the Limitation Act 1980, and it is usually three years starting from either:
- The date that the medical negligence occurred;
- The date when you first became aware that you experienced medical negligence.
While it may seem that there is no reason to rush with your claim, it is essential to seek legal advice as soon as possible with a solicitor. Medical negligence claims can be complex and require a lot of time to investigate and gather supporting evidence.
Starting your claim without delay can help preserve the cogency of evidence and help you remember any essential details about the events, improving your chances of winning compensation.
There are several exceptions to the three-year time limit:
- Child injury claims can be brought by a suitable adult at any time before the child’s 18th birthday. From this date on, the child will become an adult and will have until their 21st birthday to make a claim for compensation themselves.
- The time limit is put on hold or suspended if the claimant is a protected party, meaning they lack the mental capacity to handle a case. This could be due to any of the conditions mentioned above. In this case, a litigation friend could make a claim on their behalf at any time.
- If a loved one suffered a wrongful death due to a case of medical negligence, you have three years to start a claim after they passed away.
Can I make a No Win No Fee medical negligence claim?
If you have a valid case, a medical negligence solicitor will help you claim on a no win no fee basis. They will not ask you for any upfront legal fees or any other payments for their services if your claim fails. If you win compensation, they will get a success fee that will be agreed upon from the beginning and deducted from your award. If you lose, you do not pay them anything for their legal fees under this agreement.
If you are worried about litigation costs, you can also take out After the Event (ATE) insurance. The ATE will cover all your expenses if you lose, including the defendant’s. These include court fees, travel expenses related to the case, medical reports and barrister fees if the case goes to court.
To learn more about what is classed as medical negligence and how you could make a claim, contact us today by calling 0800 470 0472 or requesting a call back.
