QUESTION: What is Clinical Negligence?
Knowing “what is clinical negligence” guides our understanding on if have you legal grounds to make a compensation claim. Virtually every medical process carries risk, from applying a plaster to a grazed knee to open-heart surgery, and not every injury or unfortunate outcome of medical treatment is the result of negligence.
Clinical negligence occurs when responsible medical professionals do not identify a commonly understood risk. Thus, they don’t put adequate procedures in place to minimise it affecting their patients.
Clinical negligence law states that for a compensation claim to be valid, the claimant (or their medical negligence solicitor) needs to show that:
- The medical professional had a duty of care to protect the health and well-being of the patient.
- The medical professional failed in their duty of care. Your medical negligence solicitor will look for evidence to show whether the standard of care a claimant received fell below what a similar group of professionals working in that area of medicine would consider being Your solicitor also needs to show that the body of professionals are reasonable in their opinion that the original practitioner failed in their duty of care.
- Their failure resulted in injury or harm to the patient, known as causation. It is possible for a patient to suffer negligent care but not to have suffered any injury from it.
- The claimant suffered physically from that harm, and possibly financially as well.
Results of these
If one of these four elements is missing or lacks evidence, a claim has no legal standing and can be rejected. The extreme difficulty of proving negligence and causation is why it is vital you not only work with a specialist medical negligence solicitor but that you instruct a lawyer who has expertise in successfully handling claims in your relevant field of medicine. An acceptable standard of care in oncology may be a professional breach of duty in obstetrics.
Genuine Examples of Clinical Negligence
One of the most common types of medical negligence claims in the UK relates to medical misdiagnosis. For example, consider a woman who feels a lump as she breastfeeds her baby. The woman mentions it to her health visitor who recommends she see her GP to have it checked.
The GP’s job is to use their understanding of the symptoms and a patient’s medical history to:
- identify the most likely cause;
- then refer the patient on to a specialist.
This expert should also look at the symptoms and a person’s medical records before requesting appropriate tests. Then, use the results to help diagnose the cause and prescribe appropriate treatment.
In this example, failings can occur if a GP assumes the lump is due to mastitis. Although there are no other symptoms of the infection, and therefore does not make a referral. Negligence could occur if an administrative mistake means the referral appointment wasn’t on the schedule. Or if a failure in ultrasound happens because the hospital cut back on machine services to save money.
Maybe they request biopsy, but the pathologist didn’t understand the results. Accordingly, they mistakenly say the tissue was benign instead of cancerous. Alternatively, perhaps the oncologist recommends a mastectomy and breast reconstruction when a less-invasive surgery would have been adequate.
Clinical negligence cases typically arise due to human error or failings in a process. A victim would have to be hugely unlucky to have all of the above examples occur to them. But in a long process involving many people, it is not uncommon for more than one failing. However, all of these examples of poor care come from actual clinical negligence cases.
Clinical Negligence: Should You Complain or Claim?
Some clients come to us unsure of whether they have grounds for a compensation claim. Or, whether their needs would be better met by making a complaint. The two processes serve different purposes. In short, speaking with a medical negligence solicitor will help you to understand which is right for you.
The NHS has a robust complaints process to make it easy to share their concerns with the body responsible. Private practitioners must also have a clear way for patients to raise a formal complaint.
You can either submit your claim to the practice responsible for your care. Or to the commissioner who pays the NHS for the service you receive. You cannot complain to both sides, however.
A complaint is good if you experience negligent care without an injury. Therefore, you do not have legal grounds to claim compensation. A complaint will:
- Trigger an investigation into the circumstances around your care (and your injury).
- Give you a written explanation of why your care fell below an acceptable standard.
- If appropriate, provide an apology and let you know about disciplinary action or changes to procedures.
The Negligence Complaint
A complaint will not make any financial recognition of pain and suffering, even if negligence was the cause. However, sometimes, the findings of a complaint can act as proof of cause and damage in a compensation claim. This can make the legal process faster than if you or your solicitor must gather the proof yourself.
A successful clinical negligence compensation claim will award you money for general damages. They ensure you are not left financially hurt because of negligent care. But it will not lead to an apology, disciplinary action or training for the responsible staff. Nor any reassurance of improvements to their service for the benefit of future patients.
Complaints need submission within 12 months of the event, while the limit for bringing a compensation claim is three years.
How Common is Medical Negligence?
When you consider the NHS sees one million patients every 36 hours just in England, the number of clinical negligence cases seems relatively small. However, every case represents a person let down by a medical professional with their care.
Recent NHS figures show that there were 460,862 “incidents” in the quarter between January and March 2017. These categories cover everything from patient accidents to faults with medical devices and equipment.
After patient accidents, the largest number of incidents were related to the implementation of care and ongoing monitoring (65,485). Mistakes made when admitting and transferring patients (including missing patients) with 49,011 cases. There were more than 45,000 instances of concern around treatments and procedures, and over 48,500 occurrences relating to medication.
The NHS Litigation Authority (NHSLA) is the organisation that handles all compensation claims made against the NHS. Therefore, they handle nearly 11,000 claims every year. Their most recent report shows that orthopaedic surgery claims account for 13% of all claims made against the NHS.
Obstetrics only accounts for 10%, but the severity of the injuries, including lifelong conditions like cerebral palsy, take a toll. Mistakes made during pregnancy/birth account for half the value of all claims in 2016-2017.
- http://www.nhsla.com/AboutUs/Documents/NHS%20Resolution%20-%20%20Annual%20report%20and%20accounts%202016-17.pdf (pp16- 17, 23)
No Win, No Fee Clinical Negligence Claims
The majority of clinical negligence claims we handle at The Medical Negligence Experts are done on a No Win No Fee* basis. We prefer to work this way as it makes it affordable for anyone who needs it, to have access to top-quality legal advice and support. Too often, people do not have several thousand pounds readily available to instruct a solicitor. As a result, they tend not to want to make a compensation claim.
The process for claiming compensation is the same whether you pay your legal fees in advance using your savings, have your legal expenses covered by an insurance policy, or are making a No Win No Fee* compensation claim. Although rare, there are some instances where you can get to help from the Legal Services Commission (previously known as Legal Aid). We can help you to find out and assist with the application process.
A No Win, No Fee* claim, sometimes called a Conditional Fee Arrangement (CFA) removes the need to pay legal fees upfront. Instead of placing yourself under financial stress at a time when you may already be physically fragile and emotionally vulnerable, you can start your claim without concern that you will end up with a large bill at the end.
What happens if you win or lose?
If your claim is successful, then you will pay your solicitor a percentage of the compensation you receive, as well as a success fee. Your solicitor will reclaim their expenses from the other party.
If your claim is not successful, then your medical negligence solicitor will waive their expenses. The other party will typically seek to reclaim their legal costs from you, but an insurance policy – either one you already have in place or an After the Event policy your lawyer will set up for you – will pay on your behalf.
You may still be liable for some incidental expenses, but your solicitor will set these out in a clear way so that there is complete transparency. Your focus can go back to recovering your health. Our job is to make sure we get the compensation that will help you do exactly that.
Claiming Compensation for Medical Negligence
Your clinical negligence solicitor will start with a comprehensive consultation to understand the circumstances fully around your injury. They will ask you relevant questions and gather information to determine whether you have legal grounds to make a claim and if there is a good likelihood it will be successful. They will discuss their findings with you before you commit to starting a claim so that you can make an informed decision about what to do next.
If you choose to make a claim, then your lawyer will step their evidence gathering up, requesting medical records and having your injury and the circumstances around it assessed by an independent medical professional who specialises in your type of injury. Remember that you need to show not only that your care fell below an acceptable standard, but the people who hold these standards are reasonable professionals.
The more thorough we are at this stage, the greater chance of success your claim will have. We want to present the other party with case robust enough that they have no grounds to dispute our findings so that we can then negotiate for you to receive maximum compensation.
The precarious nature of making a claim
In short, we understand that some people are put off by the prospect of claiming compensation. Even if they are entitled to do so, because of the fear of having to go to court. We will always do our best to resolve claims without litigation but will not recommend you do this at the risk of losing what you deserve.
Because we know what can happen with negligent treatment claims: loss of earnings, recognition of time limits, even conditional fee agreements. We work with firms certified for claims and complaints procedures against healthcare professionals in England and Wales. To win your case, we recognise that health care must be on par with your trust and expectations. Moreover, we know how to show it fails you and what it means to you and those who depend on you.
Only a very small of claims made against the NHS go to trial, with nearly 70% of them being finalised without any court proceedings at all. If yours is one of these, you can feel confident knowing that your solicitor will help you to prepare, and support you through the process. Our job is to obtain maximum compensation in the shortest possible time and with the least amount of stress for you and your family.
Contact us today to find out more about how No Win No Fee* claims work and whether you are entitled to make one.
*Please note that certain conditions apply.
Need some help?
Am I eligible?
If you have suffered from medical negligence in the past 3 years, the short answer is yes.
However, medical negligence can be complicated, so we recommend that you speak with one of our expert solicitors - It’s Free.
How much could I claim?
As every medical case is different, the amount of compensation paid out can differ. Varying factors lead to the final figure include: Level of negligence, earnings missed out on, future losses and more.
Our experienced team of experts will give you an indication of how much you could potentially claim.
How does the process work?
We understand that when making a claim it’s important to know what to expect and when to expect it. That’s why we make the process as transparent as possible.
Your solicitor will gather all the evidence and will notify the negligent party of your claim against them. With your dedicated solicitor negotiating on your behalf, you will be kept up to date every step of the way.
Why should you use us?
No Win No Fee
We offer a No Win No Fee* service on all our claims - We assess each claim on its merits with the information provided, which aids us to determine its likely success rate. This takes the risk away from you.
Our experienced solicitors are experts in securing compensation no matter the level of negligence.
We are committed to securing the best possible outcome for you, while providing friendly support every step of the way.
Personal Dedicated Solicitors
On contact, you will be allocated your own expert Medical Negligence solicitor who will be there every step of the way. You will be provided with a direct phone number and direct email address of your solicitor.
Expert clinical negligence solicitors working for you
We specialise in helping victims of medical negligence claim the compensation they deserve.
We work on a No Win No Fee basis, meaning if we don’t win your case, you don’t pay! Once you make contact, your experienced solicitor will work to recover the maximum compensation you are entitled to.
Whether you are ready to make a medical negligence claim, or you would just like a free conversation with a legal professional, we have experts on hand to give you all the information you need. Take the first step to getting what you deserve by filling in our quick contact form and we will call you back whenever suits you.