Medical Negligence Cases: Do You Have one?
- That you were owed a Duty of Care.
Any GP, hospital, or other healthcare provider looking after you directly, is generally going to owe you a duty of care.
However, at times care services are contracted out. For example, under NHS initiatives to reduce operation waiting lists. The issue of duty of care can then be more complex but someone is always going to owe a duty in providing care and a specialist medical solicitor can advise.
It will usually be necessary to make detailed enquiries to establish what the terms of the contract were and whether responsibility remained with the original healthcare provider, or was passed on to a third party.
- There has been 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 (also referred to as negligent or substandard care).
You may be surprised to hear that the duty of care is not excellent, or even good care. The standard is simply reasonable 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 a higher degree of skill and knowledge is expected than of, say, a junior doctor. Such standards are is based on a past 1957 court case and is referred to as the Bolam test.
In 1993, there was Judgement in another case, now known as the Bolitho test. This test modifies the Bolam test.
A court will look carefully at each side’s medical experts and consider whether each written report, and oral evidence given at trial, is logical. If not considered logical, then a judge can disregard an expert’s evidence.
- That Harm has resulted from the breach of duty of care.
At Medical Solicitors, we have often hear, “I could have died because of that mistake!”
However, you cannot claim for medical negligence simply because something bad might have happened. You can only claim for harm that has happened, or will probably happen in future.
Can you sue the NHS?
The NHS is a self-insured organisation. If the NHS had to pay insurance to cover claims it would be unaffordable. Instead, the NHS put aside just 1% of the NHS budget every year to pay for claims and costs of claims. It is a myth that NHS claims “take away hospital beds”! Other healthcare providers carry private insurance cover for claims, in the same way that many of us have to have insurance cover in place.
However, we don’t advise clients to leap straight to suing the NHS (or others). We advise clients to go through a staged process, as follows:
- In many cases, writing a complaint letter is a useful opportunity to see what the NHS staff involved have to say for themselves. We can usually better advise with complaints correspondence on whether a claim should then be investigated. If the issue is complex, we have an extensive register of proven medico-legal experts who will comment on complaints information, usually free of charge.
- There is a pre-action protocol process to try and settle a claim without suing the NHS. A Letter before Claim is written and the healthcare provider then has 4 months to reply. A good number of cases are settled at this stage without ever having to issue proceedings!
- If all else fails, then court proceedings can of course be issued but always make sure you have a specialist firm of solicitors to represent you.
Is there a time limit for making a medical negligence claim?
There is a 3-year time limit for issuing Court proceedings for Clinical Negligence claims. A Claim Form should be issued in Court within 3 years of the applicable date to prevent your potential claim from possibly being time-barred. The applicable date is either the date of the treatment or accident that lead you to seek advice, or the date upon which you realised or ought to have known that your injuries were caused by the treatment or accident.
It is not necessary for you to know whether the treatment was negligent, just that it may have caused you injury.
For Human Rights Act claims the time limit is just 1 year.
Time does not run against children. Time starts ticking at age 18 and runs out at the 21st birthday.
Time never runs out for those who cannot communicate effectively with a solicitor, for example, because they are too disabled to communicate.
Can you make a claim for medical negligence after 3 years?
You can, but in very limited circumstances. Even if you think you may be outside of the time limit you can still contact us to ask what we think about your case and whether you might be able to apply for discretion. Clearly, time is of the essence in such cases and you should not delay, as ongoing delay is prejudicial to arguments for discretion.
Whether time can be extended does depend on the facts of every case so, go on…just ask us! Speak to our friendly team today.