In healthcare, as in any aspect of life, mistakes can happen and things can go wrong. This can be incredibly distressing for everyone involved and may sometimes result in a claim of medical negligence. This article will look at how common medical negligence is and how you can make a claim.
Medical negligence is fortunately rare but still happens more often than you might think. In the year 2019-2020, the number of new clinical negligence claims in the NHS was 11,682 – a rise of 9.35% from the previous year.
Medical negligence can occur in any aspect of healthcare but the specialities most likely to incur claims are emergency medicine, orthopaedic surgery and obstetrics (maternity care.) Medical negligence claims can arise from a variety of incidents. Some of the most common reasons for medical negligence include misdiagnosis, surgical negligence, medication errors and injuries during pregnancy and birth.
To put a claim forward for medical negligence, you must be able to prove that the treatment you received was below the expected standard and – crucially – that you suffered an injury as a result of the substandard care you received. You must also be able to demonstrate that the harm you’ve suffered was avoidable and wouldn’t have happened if you’d received the appropriate standard of care.
In legal terms, these are referred to as ‘breach of duty of care’ and ‘causation’ and both must be proved in order to make a medical negligence claim. You must also make your claim within three years of the negligence happening or, if you didn’t realise there was a problem right away, within three years of becoming aware of the medical negligence. There is no time limit in medical negligence cases relating to under-18s or those without capacity.
There are several steps to making a medical negligence claim.
The first step is to enquire with a medical negligence lawyer so they can assess whether or not you have grounds to make a medical negligence claim.
Legal aid is only available for medical negligence claims in specific circumstances relating to injuries caused during pregnancy and birth or soon after, for example, if a baby has cerebral palsy as a result of medical negligence during its birth. This means that in the vast majority of medical negligence cases you will need to pay your own legal fees or use a no-win, no-fee service.
Your medical negligence lawyer will obtain your medical records to begin building your case.
A medical expert will examine your medical records to ascertain that both a ‘breach of duty of care’ and ‘causation’ has occurred. They will then prepare a medical report.
A Letter of Claim is submitted by your lawyer, which gives the defendant four months to respond. They can either admit or deny liability or request more proof of the negligence. If they admit liability, your case won’t have to go to court and your lawyer can begin negotiating your compensation award.
The vast majority of medical negligence cases in the UK are settled out of court, however, if it’s a complex case or they dispute liability your case may need to be pursued in court.
There are no set amounts for medical negligence claims. The amount you receive will be based on general damages, which is your compensation for the impact that the negligence and injury have had on your life and special damages, which covers things such as loss of earnings and medical bills.
How long your medical negligence claim will take in total depends on several factors relating to each of these steps and can be anything from a matter of months in the case of simple claims to several years in more complex cases where court proceedings are needed.