Medical negligence FAQs
What is medical negligence?
Medical negligence is substandard care that's been provided by a medical professional to a patient, which has directly caused injury or caused an existing condition to get worse. There's a number of ways that medical negligence can happen such as misdiagnosis, incorrect treatment or surgical mistakes.
Where does medical negligence happen?
Medical negligence can arise in any healthcare setting where treatment is provided. The treatment may be provided by a nurse, doctor, consultant, surgeon, dentist, GP, pharmacist, physiotherapist, paramedic, counsellor, care home staff. Essentially, anyone who provides treatment and care may be found to have acted negligently.
When do people access legal support?
People access legal support when they feel that their voice has not been heard. When they feel they or a loved one has been harmed due to poor care or when a person has died when it is believed they shouldn’t have done.
Who do we help?
We act for clients from all walks of life: be it a retired teacher, a Judge, doctor, an Asda supervisor, an unemployed claimant, an intensive care nurse, a businessman, a new mum. The medical profession is non-selective in who they negligently cause harm to.
What evidence is needed to prove a medical negligence case?
Two legal aspects must be established to prove a case: Firstly, it must be proved on the balance of probabilities that; a duty of care was owed by the healthcare professional to the patient and, that the duty of care has been breached in that the healthcare professional did something or failed to do something that no other reasonably competent healthcare practitioner would have done or failed to have done and secondly, that as a result, injury has been caused. In legal terms these aspects are simply known as breach of duty of care and causation.
The extent of injury arising from the negligent act or omission can lead to limited and short lived injury to serious and prolonged suffering and in some cases permanent injury arises which may have a far reaching impact on a patient and their family.
The main source of evidence comes from the medical records as well as the client’s account of what has happened.
When a patient receives any treatment, details should be recorded at the time or as near to the time that events arise and are therefore contemporaneous. It is equally important to consider your own recollection of events if you consider that the standards of treatment and care have fallen short of what you expected to receive. Healthcare professionals are often working in busy, high demand and pressured environments where mistakes can and are made in recording and documenting data leading to inaccuracies, and taking matters out of context.
Where a recognised injury arises in a healthcare setting, such an event may lead to an internal investigation being carried out. The outcome of that investigation may highlight areas of medical practice which could have been done better and/or which may lead to a change in practice.
The outcome of these investigations can be very helpful to a patient and eventually a solicitor who may be instructed to consider whether there is a potential legal case arising from the findings of that investigation.
A claim in negligence can be pursued against the NHS, primary care (GP) or in a private setting (whether paid for or referred under an NHS scheme).
What examples can you provide of clinical negligence?
Examples of negligence would include:
- A failure to diagnose a condition or illness or make the wrong diagnosis (misdiagnosis);
- A mistake or error made before during or after an operation/surgical procedure;
- The wrong medication being administered/dispensed;
- A failure to provide valid and informed consent to a treatment or surgical procedure;
- A failure to warn of risks (including rare but material risks) to a procedure or treatment
Not all injuries which arise as a result of medical treatment and care are considered to be negligent however. Injury may arise where it is a recognised complication of a procedure or treatment, even if it is serious. If it can be proved that valid consent was obtained then that will be a valid defence to a claim.
How do I make a healthcare provider listen to my concern/complaint/claim?
Those who seek our advice often want to know how they can have their voice heard and how to ensure that harm does not happen to others.
If you consider that the standard of care you have received has fallen short of what you expected you may wish to consider what options are available to you to highlight your concerns, seek explanation and obtain accountability. Depending on what healthcare setting you have concern about will determine which avenue to pursue. If it relates to your GP or dentist, then the starting point with be to raise it with the Practice Manager. It is then up to them to investigate the same and provide a comprehensive response. They should also signpost you to NHS England or the Parliamentary and Health Service Ombudsman if you are not satisfied by the response provided.
In an NHS Trust setting, NHS Complaints can be a useful avenue to pursue. Using the complaints process may provide the explanation you are looking for and also in some cases, some level of apology where the GP/Dentist/NHS Trust feels that standards of care should have been better.
How long have I got to make a claim?
There are time limits to consider when considering making a complaint or making a claim. Concerns and complaints about treatment and care should be raised as soon as possible. This enables the issue to be addressed and hopefully resolved in a timely manner and before further and/or serious harm is caused. Generally, a complaint should be made within 12 months of the event you are complaining about.
Staff members who may have been involved in the treatment and care or witness to events may move on, recollections fade.
Before making matters formal, you may wish to consider raising issues with the person concerned or the person in charge. Whether that is a GP or Ward Manager, all organisations have a complaints process to follow and you should be signposted to the relevant person or department.
It is worth setting out your concerns or complaint in writing, stating dates and times where known and the names of those involved or present in discussions, and what the issues are and their response and what is agreed will happen to resolve matters.
You may find that a reasonable explanation has been made to enable you to accept and move on. Alternatively, the response may highlight shortcomings in the standard of treatment and care provided which helps you to make a decision to pursue matters further. Often, following internal investigation, clinical admissions may be made which confirm that standards of treatment and care fell short. Apologies may be made. Practice Managers, NHS England and NHS Complaints does not offer financial compensation.
If it’s a claim: You must begin your claim within three years of the date that the negligence arose (date of injury) or three years from the date that you knew or could have reasonably have known that you have suffered injury as a result of negligence.
In a case involving a child (a minor), the three year limitation period begins on their 18th birthday.
In a case involving a deceased patient, more often than not, the three year limitation period begins on the date of death.
Where a case relates to a patient who lacks mental capacity and cannot manage their own affairs, the three year period does not apply until and unless they recover from their disability. In such circumstances, they would need a trusted person to pursue a claim on their behalf.
What recourse may I expect from the process?
Answers, acknowledgement, apology, accountability and lessons learnt, and financial compensation to enhance your quality of life.
With the support from me and my team, we hope to empower you, support you, guide you. We hope to make a difference.
How are medical negligence claims funded?
Any claim you instruct us to investigate will be done under a No Win No Fee Agreement. It does not cost you. If your case is successful, the costs incurred to investigate it are paid by the defendant and in most circumstances, you will receive 100% of any compensation awarded. If after investigating your case, there are insufficient prospects of success to pursue it further (less than 50%), we will explain the reasons why and thereafter we will write off any costs incurred and close our file of papers.
There really is nothing to lose. We welcome any enquiries and are happy to offer advice and guidance as to the best approach for your and your family. Please contact our team for an initial conversation.