Medical Negligence Claims

At some point in almost everyone’s life, we will require medical treatment. For most of us, we are fortunate not to experience any complications when we seek medical treatment. However, for some patients mistakes happen when receiving medical treatment. When negligence occurs during the provision of medical treatment, Mark Reynolds Solicitors are here to help you to obtain justice and obtain the best compensation. Clinical or medical negligence can occur when receiving treatment in a hospital, from your GP, dentist, optician or pharmacist.

For a free, no-obligation chat about the concerns you have about medical treatment provided to you or a loved one please contact us on 0800 002 9577. You may also fill out the contact form on this page and we will be in touch as soon as we can.

A medical negligence claim is a claim which is brought potentially through the Court. By bringing a claim of this nature the purpose is to obtain compensation for the personal injury and unnecessary pain and suffering experienced due to the negligence of the medical professionals or organisations who have failed to provide appropriate treatment and care.

Medical negligence can take many forms. While we can bring a claim for many different complications and errors in procedures, these are some of the areas in which we focus:

How does a medical negligence claim work?

Medical negligence claims are not the same as personal injury claims because the proof they require from you is different.

As a claimant, you must prove fault on the part of medical healthcare professionals and prove there has been avoidable harm that affects you personally. This is also known as causation.

Consequently, medical negligence claims can seem daunting and complicated unless you have the right support and knowledge to help you navigate your way to a successful conclusion.

Here, we explain what medical negligence is, and what key processes are involved in making a claim.

What is medical negligence?

Medical negligence occurs when you experience care or treatment that falls below the professional standards you should expect, resulting in damage to your health.

It can be the result of something that occurs during general surgery, or from an incorrect or delayed diagnosis.

• Medical negligence can happen in general surgery when medical staff leave swabs or medical instruments inside a patient following a surgical procedure. As a result, they may develop complications such as infection, which then requires further surgery to remove anything left behind.
• There are also cases where surgical staff have carried out unnecessary surgery or removed the wrong organs due to a clinical mix-up over notes or X-rays.
• Accidents can occur during surgery when a surgeon cuts vital nerves or blood vessels, for example, with sometimes catastrophic or fatal consequences.
• Other incidents of negligence come from healthcare professionals failing to explain post-surgical procedures to patients, resulting in complications.
• Sometimes medical negligence arises from doctors not acquiring clear consent prior to surgery.
• Incorrect diagnosis of a serious illness such as cancer can be a form of medical negligence. Where a patient is misdiagnosed, or their correct diagnosis is delayed due to initial errors, this can be cause for a medical negligence claim.
• In 2006, a nine-month old baby was diagnosed as having tonsillitis and sent home from hospital. This was a misdiagnosis. In fact, the baby had meningitis and suffered severe brain damage, requiring 24-hour care for the remainder of her life. The local health board admitted medical negligence and paid the family compensation.

Before the 20th century, claims against doctors for medical negligence, either in diagnosing or treating conditions, were virtually non-existent. In the 19th century, any legal action would normally have been based on breach of contract. But these claims were rare as the law at that time was not easy to adapt to doctor-patient relationships.

In the next century, however, things began to change.

The 1957 case of Bolam v Friern Barnet Hospital Management Committee, case set out the basic principles for judging whether a doctor’s or clinician’s actions were negligent.

These principles became known as the Bolam Test.

The Government has since created a centrally-funded resource to meet the costs of any claims brought against the NHS, which has its own litigation authority to contest law suits.

Medical negligence claims have grown considerably in number. BMJ reports that the NHS paid out £2.4 billion in medical negligence claims in 2018.

In its annual report, NHS Resolution observes that in 2018/19 that the number of claims has remained relatively steady but that there are rising legal costs, making it important to settle negligence claims out of court whenever possible.

The compensation you can claim for any injuries or losses you suffer as a result of medical negligence can include:

• Compensation for pain and suffering
• Compensation for loss of earnings
• Payment for ongoing treatment because of medical negligence
• Compensation for changes in lifestyle, if you cannot carry out certain activities
• Covering the cost of home adaptations, extra care or equipment
• Compensation for psychological damage

Who can claim?

You can claim for medical negligence if your treatment fell below a minimum professional standard of competence and you suffered an injury that was otherwise avoidable.

You can also claim if you are the next of kin of someone who has died because of negligent care, or who cannot represent themselves, such as a child or someone with a mental disability. You may then be able to act on their behalf in seeking legal compensation.

But to make a successful claim, you need to first prove that medical negligence has occurred.

How to prove medical negligence

Proof is what a successful medical negligence claims hinges on and the burden is on you, the claimant.

It has two distinct parts. You must:

• Prove that the doctor, clinician or other healthcare professional has broken their duty of care towards you, and
• Prove that any physical or mental injuries you have suffered as a result of this would not otherwise have occurred

If there is no proof of negligence you cannot claim if, for example, your treatment has not been successful, or it has failed to meet your expectations or you would have had the same outcome without it.

Medical negligence is a complex area of law, requiring specialist depth of knowledge and legal expertise.

It is vital that, to make a medical negligence claim, your injury falls within the legal definition of medical or clinical negligence.

As a claimant, you must prove that your treatment has fallen below the acceptable standards of a competent medical professional and that it has caused damage to your health which you would not have suffered from otherwise.

You will therefore need to provide evidence.

In the first instance, this will need to be physical evidence, in the form of written material concerned with your treatment.

Therefore, the first step is for you to make an official complaint. That is usually something you do yourself, rather than going through a solicitor.

Your complaint should include:

• The time and date of your treatment, and where it took place
• The names of all the individuals involved
• A description of exactly what happened
• The reason why you are making your complaint
• The questions you want answering

You can submit your complaint to the NHS Patient and Liaison Service (PALS).

The complaint procedure is separate from your medical negligence claim, and the outcomes are not connected.

However your original letter of complaint, and any responses you receive, is important as evidence. These can play a vital role in establishing whether you have a medical negligence claim.

In most medical negligence cases, there will also need to be medical witnesses, who will give their professional opinion.

Expert evidence from these witnesses is used to establish whether an incident constitutes negligence, and the link between this and the injury or damage the claimant has suffered.

A critical aspect in establishing proof is causation.

What is causation in medical negligence?

Causation in a medical negligence case means proving that there has been a breach in duty of care.

In legal language, this is known as establishing causation, and it is one of the most difficult parts of a medical negligence claim.

It can be difficult to prove causation even when there is enough evidence to show that negligence made more than a minimal contribution to the damage you have suffered.

This is because establishing causation relies on demonstrating that the balance of probabilities shows a breach in duty of care is the reason for your injury.

For example, when a patient is suffering from stomach pain and vomiting and is sent home after a doctor’s examination, and then dies later as a result of fatal poisoning, if no treatment would have saved them, then there is no proof of causation.

If however, the type of poisoning could have been treated successfully with some sort of medical intervention, then there would be grounds for proving causation.

Medical negligence claims can become further complicated where there are multiple factors involved. If, for example, there are various possible causes for an injury, it might not be possible to identify a breach in duty of care as the sole cause.

But if the multiple factors contributing to injury are found to be cumulative, this may mean the claim will be successful.

What causation demonstrates is how dependent successful medical negligence claims are on expert legal advice, because of their potential complexities.

Medical negligence claims vary in their severity, which also reflects on the amount of compensation you can claim.

How much can you claim in a medical negligence case?

Each medical condition presents itself differently, and outcomes also differ. Therefore, the same is true for how much you can claim in a medical negligence case.

According to NHS Resolution, the health service’s litigation authority, the average value of an individual claim is around £50,000, but amounts will vary.

What your compensation claim attempts to do is to return you to the quality of life you were experiencing before you suffered an injury as a result of medical negligence.

The amount you can expect to receive, if your medical negligence claim is successful, will depend to an extent on the extent of the injury and losses and any costs towards your recovery or further treatment. Your compensation may include costs to cover long-term changes to your living arrangements.

It is difficult to put a value on someone’s quality of life, which is why medical negligence claims will vary.

The Law Gazette has reported that obstetrics claims accounted for 10 per cent of claims in 2016/17 but 49 per cent of total damages.

Many claims are settled out of court, in confidence, which means precise individual amounts are not public knowledge.

The law expects the claimant to receive an amount in compensation that will put them in the closest possible position to what they would have been in if their injury had never happened.

NHS Resolution provides information on how claims are valued under this general principle:

• General damages form the lump sum payment to compensate the claimant for pain, suffering and loss of amenity (PSLA). The court will base this figure largely on previous awards made in similar cases.
• Special damages are specific financial losses that have arisen from the claimant’s injury and have been incurred up to the point the claim is settled. These include loss of earnings and care and assistance.
• Future losses may apply as periodic payments, in addition to the lump sum, in certain circumstances.

The Judicial College publishes regularly updated guidelines for the assessment of damages in personal injury cases.

For example, the November 2019 guidelines put moderately severe brain damage as between £205,580 and £264,650. Severe pain disorders are in the range £39,530 to £59,110.

Severe psychiatric injuries go from £48,080 to £101,470.

Should you choose to make a medical negligence claim, your solicitor will be able to advise you on the amount of compensation you are entitled to ask for.

Not all injuries will fit neatly in the Judicial College’s guidelines, and claimants may suffer financial losses specific to their individual circumstances.

Future financial losses may increase the value of the medical negligence claim if, for example, you can no longer work at all, or you require ongoing care for the rest of your life.

But given that the amount you can claim will vary depending on the specific aspects of your case, how long should your medical negligence claim take?

How long does a medical negligence claim take?

As we have mentioned earlier, medical negligence cases can be complex. This complexity means that these cases can take a considerable amount of time to conclude.

Even in unfortunate situations where the claimant’s circumstances have changed dramatically due to injury, legal litigation can add intricate layers of mounting involvement to their claim.

‘How long?’ is a common question claimants ask, but it is a difficult one to answer.

No two cases are the same, and where the expert opinions of medical specialists are needed it can add more time to the process – especially at the earlier stages of a medical negligence claim.

A big part of what affects the length of a case is the nature of the claimant’s injury and how it impacts, and will continue to impact, on their quality of life.

Broken limbs can heal over months, but brain damage, for example, can have life-changing consequences.

Medical negligence cases become increasingly complex where there are judgements around future provision for establishing a certain quality of life.

They may also involve multiple aspects to do with establishing causation, where evidence will be required from various sources and parties.

These timelines are therefore only a rough guideline:

• Simpler, non-contested hospital negligence claims – 18 months to two years
• Medical negligence cases going to court – three to four years
• Complex, contested cases with ongoing injury effects – five to six years

On the one hand, the potential time a claim takes may make it seem challenging if not disheartening. On the other, it represents the seriousness of the issue, and the importance of taking a professional, diligent approach to making a medical negligence claim.

It is also important to note that while cases themselves can take a while to conclude, there is a time limit if you want to start a legal claim for medical negligence.

Is there a time limit for suing the NHS?

When making a medical negligence claim, you must start it within three years from when the original incident occurred.

Remember, a medical negligence claim is separate from any other complaints procedure you undertake. Even if you have already written to the NHS to officially complain within the three-year period, it will not count as making a medical negligence claim.

It is important that you do not let the time limit expire if you want to make a legal claim.

There are a couple of exceptions to this:

• If the injured person is a child, the three-year limit does not start until their 18^th birthday
• If the claim is about someone with a mental disability who cannot therefore manage their own affairs, the three-year period will only apply when, or if, they recover from their disability

It makes sense to get good legal advice about making a medical negligence claim as soon as you can.

In certain circumstances, medical negligence may attract criminal charges, in effect becoming a criminal rather than civil offence.

When does medical negligence become criminal?

A medical professional may end up being sent to prison for providing medical care.

A successful civil action will result in financial compensation for the injured party, whereas a successful criminal prosecution may result in a doctor, clinician or other medical professional receiving a custodial sentence.

The original principle of duty of care was established in a landmark 1932 court case, Donoghue v Stevenson.

A breach in duty of care can mean liability for medical negligence. However, where negligence is proven but is judged to be gross negligence, this may then make the medical professional involved subject to criminal charges.

The requirement to prove criminal negligence is much higher than for regular medical negligence cases, to the extent that the negligence in question is beyond a reasonable doubt.

This goes much further than the balance of probabilities in civil medical negligence cases.

There are comparatively few cases of criminal negligence brought against doctors, but usually they involve the deaths of patients.

The difficulties come in establishing the actions which go beyond medical negligence and become criminal negligence.

Where prosecutors can prove there has been extreme recklessness or obvious indifference to risks to patients undergoing treatments, then it may result in successful criminal cases brought against medical professionals.

Similarly, objective evidence of extreme incompetence or ignorance may lead to criminal charges.

In the end, the decision will be down to a jury to decide if a medical professional’s action or inaction amounts to a crime.

There have been plans to legislate for new criminal offences governing medical negligence, in light of the Mid-Staffordshire NHS Trust scandal.

Between 2005 and 2009, a substantial number of patients died at Stafford Hospital in unexplained circumstances.

Figures put these unexplained deaths at around 400, but actual numbers are disputed. The deaths were caused through negligence, and an inquiry in 2013 labelled the failings in care at the hospital ‘a disaster’.

Criminal prosecutions in medical negligence cases remain rare, but gross negligence and medical manslaughter can be the consequences of care falling below acceptable professional standards.

Making a no-win, no-fee medical negligence claim

If you want to make a medical negligence claim, it is a process which can be lengthy and complicated, but one which the right legal support will make much more straightforward for you.

Here are the main points to consider:

• Have you or someone you are acting for suffered from medical negligence? What happened, where did it happen and what have been the consequences?
• Are you within the three-year limit from the time of the incident?
• Have you made a written complaint to the NHS, and have you kept copies of all correspondence relating to this?
• What other evidence do you have to support your claim?

A claim for medical negligence is not something to take lightly. It can be a drawn-out process and it can involve you going over what happened to you, or your loved one, repeatedly.

Many people find this traumatic and upsetting and the court cannot force a healthcare professional to apologise, change how they work or discipline them.

It is about you gaining compensation for the injuries you have suffered, and only that.

However, if you have suffered damage or injury as a result of medical negligence, then you are entitled to claim compensation, which can help cover things like loss of earnings and any future costs of care or changes you must make to how you live.

It is about you being able to try and regain an acceptable quality of life.

Making a medical negligence claim does not need to cost you anything up front. No win no fee is a risk-free way of pursuing your claim, because you only pay your solicitor’s fees if your claim is successful.

Under a conditional fee agreement (CFA), the costs you pay are usually a percentage of the compensation you are awarded.

For more details about making your medical negligence claim, please call us on 0800 002 9577, or complete our online contact form.

It is important to remember that by bringing a claim for medical negligence the main objective for a solicitor is to receive compensation. Here at Mark Reynolds Solicitors, we understand that compensation is not always the main objective of clients contacting a solicitor.

Many clients have told us that they just want answers as to why something has or has not happened in their care. Some clients want to receive an apology or the reassurances that a similar incident will not occur again or they want someone to be held accountable for what has happened. Therefore, at the early stages of a case, we will discuss whether it is appropriate to submit a complaint to the organisation where treatment has been provided or whether a complaint should be submitted to regulatory bodies such as the GMC or the NMC.

Timescales for bringing a medical negligence claim

There are strict time limits for bringing a clinical or medical negligence claim, therefore, it is essential to contact a solicitor as soon as possible when you become concerned that negligence has occurred. The Law states that in personal injury claims, if it has not been settled, a claim must be issued in Court within 3 years of either:

• The date of the accident or negligent act, or if later;
• the date when the Claimant first became aware or should have been aware of the following:

1. the identity of the possible Defendant
2. that the Claimant suffered a significant injury
3. that said injury is attributable to the act or omission of the Defendant

If proceedings are not issued within the three-year period, then the Defendant can argue that the claim is statute barred and cannot be pursued through the Court. There are certain exceptions to this rule, where the Court can exercise their discretion to allow the claim to continue. However, the Court uses this discretion very rarely.

When the medical negligence has occurred to a child, the three-year period for bringing a claim does not start until their 18th birthday. In the circumstances where the injured party has a mental disability, the rules over the time limits for bringing a claim are more complex. When the claim relates to a person who has died as a result of clinical or medical negligence then proceedings have to be commenced no later than three years from the date of death.

You should visit a specialist medical negligence solicitor as soon as possible since there is a vast amount of work to be done before bringing a medical negligence case.

Why choose Mark Reynolds Solicitors?

Here at Mark Reynolds Solicitors in Liverpool, Leigh, Runcorn & Warrington we have experience in handling clinical and medical negligence claims. We place a great deal of importance on getting to know our clients to understand how the negligence they have experienced has impacted on their lives and that of their family. By getting to know our clients well it enables us to ensure we reach the best possible outcome for our clients to enable them to rebuild their lives.

Although our medical negligence department is based in our Warrington office we are happy to meet with clients in their homes, or at our Leigh, Liverpool or Runcorn offices. Mark Reynolds Solicitors Warrington is located at 13 -15 Suez Street, WA1 1EF. Our hours of business are 8:45 a.m to 5 p.m Monday to Friday.