What is medical negligence?
Medical negligence, also called medical malpractice, is a type of professional negligence by omission or act by a doctor where the medical treatment that is provided to the patient is of a standard lower than accepted norms of practice in the medical community and leads to injury / death of the individual, with the majority of cases being related to medical error.
Each country, as well as jurisdictions within each country, will have their own regulations and standards for malpractice e.g. medical negligence cases UK will be handled quite differently from medical negligence case in the US or other countries.
A patient can claim in court that they have been a victim of clinical negligence and, after a due process, receive compensation for their damages if their claim is found true. The following basic stipulations need to be met for the patient to get their due compensation:
- 1 What is medical negligence?
- 2 Do I need a medical negligence solicitor?
- 3 What steps do I need to go through to claim?
- 4 What amount of compensation am I looking at?
The claimant (normally the patient themselves) have to prove in court that the health practitioner had a duty of care to them, that the health practitioner neglected his duty, and that this had led to injury / harm to the patient. Both liability and causality conditions have to be fulfilled by the patient for them to acquire compensation:
- Liability to prove that the health practitioner had acted in a way that wasn’t normal medical community procedure. The Bolitho and Bolam tests are the most frequently used tests to establish the existence of liability.
- Causation that damaged was caused that wouldn’t occur otherwise (probabilistically, the actions of the health practitioner had more than 50% chance to cause the damage). Put another way, if the health practitioner failed to detect a cancerous tumor that had at least a 50% chance of recovery, their inaction can be deemed as a cause for damages.
After the claimant has met the aforementioned criteria, their loss is assessed in terms of current / future earnings, reduction in life quality and mental stress caused. They are paid recompense in money – no more and no less than they deserve.
Do I need a medical negligence solicitor?
When a clinical diagnosis, surgical procedure or hospital treatment goes awry either privately or in the NHS, and the error occurred due to a judgment lapse or incompetence by the medical practitioner, you’ll need an experienced clinical negligence lawyer to represent you in court since these cases can be tough to prove and this personal injury claim process may become very drawn out.
A medical negligence case is complicated from the very start and normally takes a considerable amount of time to get sorted since you’ll have a big claim to prove. And the defense won’t take your claim lying down either – you can be sure that the medical professional you’re taking to court (or this person’s insurance company) is going to do all that is in their power to prove to the court that the claim is false and that the injury wasn’t a result of the doctor’s incompetence.
Drawn out duration:
As already mentioned, the drawn out time frame of medical negligence case can cause it to stretch to years – and this is particularly important since the ‘Statutes of Limitations’ has prescribed a fixed duration in which people can file malpractice claims, starting from the time the injury occurred.
The cases aren’t cheap if you intend to fight them through privately funded solicitors. Medical experts, whom you’ll be using for expert opinions to strengthen your case, will be very expensive, particularly if they have to disrupt their normal work routine to be part of your case. The other costs such as filing/ discovery and court costs will of course be included.
Fortunately however, most of the best medical solicitors take on these types of cases on a no win, no fee basis. In other words, your solicitor will take care of all the upfront costs and court costs on their own and will only charge you a fee if they win you the case (this fee is normally a percentage of your compensation). However, if you lose the case, you won’t have to pay their bills. You’ll still have to pay for court costs though.
You shouldn’t let yourself be intimidated by the expenses and complications inherent in a medical malpractice case. If you believe that you have sustained a serious injury as a result of your doctor’s incompetence, do not hesitate to consult a solicitor to see if you deserve compensation for your injury – there are plenty of quality law firms that offer free legal advice in no win, no fee personal injury type cases.
Besides getting your due share of damages for the subsequent medical costs, lost earnings and mental distress, you will also be making sure that another patient does not have to go through the same trouble as you did.
What steps do I need to go through to claim?
As already explained, if you have reason to believe that you suffered from physical injury due to a medical practitioners malpractice, you should start by seeking the professional legal advice of a personal injury claims solicitor.
The solicitor will help you determine whether the claim you’re making fulfills the ‘liability’ and ‘causation’ criteria which is a must for the claim to be valid.
Before formal court proceedings:
There is a pre-action protocol clinical negligence claimants can utilize to reach a resolution even before the case goes to court. Basically, this protocol can be a handy opportunity to solve the claim efficiently and quickly, avoiding the stress, expenses and time that would otherwise have to be spend on court proceedings.
However, there is a short time frame in which this protocol can be used, and it requires a great deal of cooperation to maximize its utility:
- If a patient or the patient’s solicitor asks for the copies of their records, with proper approval, the request has to be acknowledged within a fortnight, and the copies must be provided within 40 days.
- If the patient desires to make a claim, the doctor must be sent a ‘letter of claim’ that describes the patient’s take on the events, the injury caused and any damages they seek.
The medical practitioner’s legal reps have 4 months from that point to send the claimant a ‘letter of response’. The doctor will be asked the following questions:
- What they did
- The logic behind their medical decisions
- What their notes say
After the pre-action protocol’s time period ends, formal court proceedings being. Note that even in this case, in all likelihood, the claim can be resolved through negotiation/mediation before it enters the trial case.
However, if the case does go to court, the first step will be serving the medical practitioner a claim form (issued in the court). The basic time window for issuing the claim form is 3 years since the date of injury, or the date when the patient became aware of their injury. This date can be extended in certain cases where the patient is a child, mentally challenged or if there was an interval before the patient was released and could become aware of the injury.
The trial will take place typically 12 to 18 months after the issuing of the claim form, which the medical practitioner’s side has to acknowledge within 14 days.
What amount of compensation am I looking at?
Breakdown of costs:
There are four major types of expenses / losses you are eligible to claim as medical negligence compensation amounts:
- Special damages: These are past financial costs which you incurred because of your accident. Receipts will be needed to establish the proof of amount e.g. medical costs, lost income and so on.
- General damages: These are money payouts that will compensate for the pain / suffering caused by the physical / psychological trauma you suffered.
- Interest: You are also eligible to claim interest for both the pain and suffering, and the financial losses i.e. special damages.
- Legal costs: These cover the costs of the legal process of the claim.
How will your lawyer calculate your compensation amount?
Your medical negligence no win no fee lawyer will calculate the compensation amount by comparing your case with similar injury claims cases that happened previously in UK courts.
If the claim was decided some time ago, the lawyer will also factor in inflation to raise the compensation from the one that was awarded in the old case so that your injury is valued at today’s economy.
How much can you get?
The compensation you receive depends on the injury / trauma you suffered, and there are so many types of injury / damage that they cannot all be listed here. Here are some of the more typical injury types and their corresponding approximate damages:
|Injury / damage type||Compensation / Pound Sterling|
|Losing a kidney due to an operational mistake||32,000|
|Unsuccessful sterilization which led to a healthy baby being born||7,500|
|Dental error leading to a healthy tooth being lost||2,800|
|Severe damage to brain||290,000|