There must be various factors present to be able to bring a medical negligence claim (also known as ‘clinical negligence’) against a health care professional.
What Is Medical Negligence?
The definition of medical negligence is when a patient does not receive appropriate care in line with the high standards expected of those in the medical or healthcare profession, and experiences direct harm or the worsening of their condition as a result.
In 2021-2022, the NHS spent around £2.5 billion on claims, which includes damages paid out and both claimant and NHS legal costs, and between April 2022 and March 2023, the NHS recorded 384 Never Events (serious incidents that are entirely preventable). The most common Never Events included wrong site surgeries, retention of foreign objects post-procedure and wrong implants or prostheses.
- The Factors of a Medical Negligence Claim
- How Can I Prove a Medical Negligence Claim?
- What Are the Legal Duties and Responsibilities of Care Providers?
- How Do I Get Started with a Claim?
- Can I Claim on Behalf of Someone Else?
- Are There Time Limits on Medical Negligence Claims?
- What Are the Different Types of Medical Negligence?
- How Much Compensation Will I Be Awarded?
- Can You Make a Complaint Alongside a Claim for Compensation?
- How Are Medical Negligence Claims Settled?
There have to be various factors present to be able to bring a medical negligence claim (also known as ‘clinical negligence’), against a health care professional.
- A duty of care.
Of course, any GP, or hospital, looking after you, is going to owe you a duty of care. You may be surprised to know that the duty is not actually to provide an excellent standard of care, nor even a good standard! It is only to provide a reasonable standard of care that should be expected of any responsible body of similar healthcare providers.
So, if a nurse treats you, then the standard of care will be that of a responsible body of similarly qualified nurses. If a consultant treats you, then the duty of care will be for a higher degree of skill and knowledge than would be expected of, say, a junior doctor. This test is based on past case law and is referred to as the Bolam test – more on this later.
- A breach of that duty of care.
There has to be something done (‘an act’), or something not done (‘an omission’) that amounts to a breach of duty of care. However, although you can complain about any such act or omission, you cannot bring a medical negligence claim for compensation unless you can also satisfy the third test below.
- Harm resulting from the breach of duty of care.
At Medical Solicitors, we have often heard the complaint: “I could have died because of that mistake!”
However, you cannot claim for medical negligence simply for knowing that injury may have come to you, or a loved one. A medical negligence claim can only be brought for harm that has actually resulted, or harm that will probably result in the future, from breaches of duty of care.
Key Elements of Medical Negligence Claims
A claimant does not have to prove 100%. The burden of proof is on the balance of probabilities, so 51% or more. However, as a matter of common sense, the more serious a case is regarding the alleged breach of duty of care, the stronger the evidence should be.
You must be able to prove the factors above have been met – your solicitor can assist to ensure that you have any proof prepared.
Your care providers will have to meet certain duties. These include areas like informed consent, ensuring you know what your care comprises and what the potential outcomes and side effects could be, and Duty of Candour, ensuring you are informed if something goes wrong which causes moderate to severe harm.
Something that we often hear from clients is that they felt something had been lacking or inappropriate about their medical treatment, but that they weren’t sure what recourse they had, if any. Often, claimants begin by making a complaint against their healthcare provider (you can make a claim for compensation as well as filing a complaint). We have plenty of resources available to do with the claim process, but of course, if you have any questions, please get in touch with our team.
In certain circumstances, you can make a claim on behalf of someone else – the person assisting someone else with bringing a claim is known as a ‘Litigation Friend’. This typically happens where either the claimant is under the age of 18, or if the claimant has reduced mental capacity or is incapable of managing their own affairs (known as a ‘Protected Person’).
There is a general time limit of three years from the applicable date (the date of the treatment that caused harm or the date upon which you realised your injuries were caused by the treatment). However, there are some exceptions to this time limit and, in certain cases, a judge will permit a case after the time limit has passed. If you are concerned about the time limit of your claim, please contact us and we’ll advise you on the best course of action.
Compensation can be claimed where there has been:
- delay in getting a patient to hospital
- delay in diagnosis
- inappropriate advice given concerning care options and risks and benefits of such options
- excessive delays in providing actual treatment
- where there has been any substandard care that amounts to actual medical negligence
If you’re unsure whether your experience could be considered medical negligence, speak to a qualified medico-legal solicitor.
One of the first questions we typically get asked by prospective clients is how much money their claim might be worth. We typically wait to value the claim until we have obtained an independent medical report to explore how the injuries may affect our client in future. Working with experienced medical negligence solicitors ensures that no stone is left unturned, with every possible impact considered and factored into your claim.
You can pursue a complaint against a care provider while also seeking financial compensation, but you do not have to. However, if you do first make a complaint, you may be able to learn more information about the situation, which can then help your compensation case later.
There are several stages to settling a claim outside of court, which can not only ensure proceedings are concluded quickly but also reduce the stress of a hearing in court. The amount of time it takes to reach a settlement can depend on a number of different factors, so it’s best to discuss your individual case with your solicitor.
The Bolam and Bolitho Tests – What Is Classed as Medical Negligence?
The Bolam test is still applicable today, despite being decided in 1954 during the case of Bolam v Friern Hospital Management Committee.
During that trial, McNair J stated that a doctor, “is not guilty of negligence if he has acted in accordance with what the practice accepted as proper by responsible body of medical men skills in that particular art.” He went on, “Putting it the other way round, [a doctor is] not negligent, if he is acting in accordance with such practice, merely because there is a body of opinion who would take a contrary view."
In 1993, there was Judgement in another case, now known generally as the Bolitho test, which modifies the 1957 Bolam test. Lord Browne-Wilkinson restricted the boundaries of Bolam, stating:
“The court should not accept a defence argument as being ‘reasonable’, ‘respectable’ or ‘responsible’ without first assessing whether such opinion is susceptible to logical analysis […] However, where there is a body of medical opinion which represents itself as ‘reasonable’, ‘respectable’ or ‘responsible’ it will be rare for the court to be able to hold such opinion to be other than represented”.Lord Browne-Wilkinson
The decision allows a court to look carefully at each side’s medical experts and to consider whether or not their written report, and oral evidence given at trial, is logical. If not considered logical, then a judge can disregard that evidence and decide for the other party to an action. This could happen, by way of a few examples, where an expert:
- Is simply proven to be wrong in their opinion; or
- Is shown to be giving an opinion that is not representative of a “reasonable body of opinion”, but rather the expert is just speaking for himself; or
- The expert is shown not to have considered all of the relevant factors in a given case
So, now you know what medical negligence is and how to determine whether you might have a case. There are many key elements to creating a successful claim for medical negligence and every case is unique. If you would like any more advice about any areas of medical negligence, please see our Help and Advice or speak to the specialist team at Medical Solicitors.
About Medical Solicitors
Our friendly team of specialist lawyers at Medical Solicitors have a lot of experience in bringing successful medical negligence claims.
We conduct most of our Clinical and Medical Negligence claims under ‘No Win, No Fee’ agreements, also known as Conditional Fee Agreements, so you don’t have to worry about how you are going to afford to bring a medical negligence claim for compensation. You have nothing to lose in speaking to us.
Please get in touch today to discuss your claim.
Originally published 3rd Feb 2021
Most recent update 22nd May 2023