Understanding Medical Negligence Claims: A Brief Guide

When we go for medical treatment, we have a lot of faith in doctors, nurses and other medical professionals to deliver safe and effective care. The majority of the time, that faith is well placed, but something goes wrong in some cases. This may be down to bad luck, a tricky diagnosis, or a medical error at times.

If a patient experiences avoidable harm or injury as a result of poor care, they might be able to claim medical negligence. It does not matter if the care was received within the NHS or in some private practice. A patient might wish to claim in order to get an explanation, apology, and guarantee that the clinician or hospital team has learned from the mistake, or indeed to claim compensation for the negligence.

Is there a deadline for filing a claim?

Under s.11 of the Limitation Act 1980, the patient has three years to make a claim from when the injury has occurred or from the time they became aware that they were harmed by negligent treatment. There are, however, exceptions to this provision. For instance, where the claim is against children, the clock does not begin to run until the child turns eighteen. In case of adult persons with unstable mental capacity (as the Mental Capacity Act 2005 defines), time does not begin to run until their mental capacity is restored. Besides, according to s.33 of the Limitation Act 1980, discretion is available to the court to extend any time limit where it thinks it is just and equitable to do so.

How can you win a claim for medical negligence?

In order to win a claim, you need to prove four facts:

• That the healthcare provider was liable to provide you standard care
• That the obligation was violated – which means the care offered was below a standard level,
• That you have suffered damage to your condition, your injury has been aggravated or your recovery has been delayed, and
• That this harm was due to the breach.

What is “Standard of Care”?

It is necessary to know what is meant and expected by “standard of care”. This is tested in the “Bolam test”, which says a healthcare practitioner will not be found to be negligent if a responsible body of medical opinion supports his or her conduct; even if other professionals might have done things differently. It is essential to prove that the harm was brought about by the negligent care and not by the underlying condition.

General Defences to Claims of Medical Negligence

There are a number of defences which can be used in response to a claim of medical negligence, the most common being:

• No causation or breach: Contending that the care provided was in accordance with accepted standards or that the injury would have happened regardless of whatever the healthcare professional did.
• Contributory negligence: The argument that the patient’s actions were responsible for the injury themselves can help. This is not an absolute defence but can reduce the amount of damages that a successful claimant is awarded.
• Informed consent: The argument that the patient was adequately informed and conscious of both the treatment and the risks involved in the process, as well as the fact that any reasonable alternative treatment existed can support the defence.

 Compensation and Expert Evidence

Once you succeed in your claim, your damages will be compensated in the form of financial awards and also as payments for future care. The aim of damages is to restore you to where you would have been if the negligence had not happened. Damages are typically classified into two heads:

• General damages involves compensation for suffering, pain and loss of amenity (which means loss of enjoyment of life); as well as any future losses including loss of earnings if the claimant is no longer able to get back to work.
• Special damages include any monetary losses such as medical costs, travel costs, loss of past earnings and cost of care.

To assist a claim, expert evidence is typically required. This typically consists of three types of reports:

• Breach of duty report to determine whether the defendant was in accordance with the expected standard of care.
• Causation report, whether the damage could be caused by the errors, meaning if there is a causal connection between the damage and the negligence.
• Condition and prognosis report which considers the immediate effect and the probable long term effect of the damage as well. It also involves the chances of recovery and what measures can be taken to support the claimant’s condition and way of life.

How to Finance a Claim

Claims of medical negligence can bear huge expenses, but most are paid for under a Conditional Fee Agreement (CFA), often referred to as a “no win no fee” contract.

It is also possible to purchase After Event Insurance (ATE) that insures claimants against being forced to pay the legal costs of the defendant in case the claim fails. In addition, there exists a costs regime called Qualified One-Way Shifting that restricts a claimant’s liability to pay the costs of the defendant. But this cost protection is not available in some situations, such as where the claimant has been fraudulent or the claim should not have been issued. To be precise, there are several solutions for a claimant to pursue justice without the constraint of exceptionally costly legal charges.

Contact Us for Help

If you believe that you have been harmed as a consequence of medical negligence, taking advice from a solicitor will enable you to explore your options. At Taylor Hampton, we are here to walk you through the procedure with straightforward guidance and solid support. We are also pleased to take on appropriate cases on a ‘no win no fee’ basis, so you can pursue justice without incurring any financial cost. To find out more, please get in touch with our medical negligence practice for an initial consultation with our specialist team.