Understanding Medical Negligence

Sadly, there are times when a person needs to contact a specialist medical negligence solicitor due to care they have received. But what is medical negligence?

Each and every individual in the UK is entitled to healthcare by professionals, to include GPs, clinicians, Surgeons, Opticians, Dentists, just to name a few.  We are all human and sometimes mistakes can happen. However, the mistakes can lead to extremely severe consequences.

• What is medical negligence?

Medical negligence is when the treatment you received fell below the standard expected, and which has resulted in an injury. The treatment and injury must however be linked.

Medical negligence is not just one act; there are a number of ways that it can arise, to include misdiagnosis, incorrect treatment, surgical mistakes and more.

• How do I prove if I have suffered from any negligence?

The onus is usually on the patient bringing the claim to prove they are the victim of medical negligence, and that the injury is as a result of the negligent act or omission and not due to any other ongoing condition.

As above, it is not enough to prove that the care provided fell below the standard expected, you must also prove that the injury could have been avoidable.

You will usually be given a chance to provide your version of events and this, together with your medical records are used as the evidence in the case. Medical experts are then required to provide their opinion on the treatment provided to you.

• What is a medical expert?

A medical expert plays a key role in any medical negligence claim. These are individual doctors/clinicians who will review all of the medical evidence in your claim and will confirm if the care provided to you was acceptable or fell below the standard expected. If the latter, they will also be able to advise as to what the correct course of action should have been. Experts are independent, with no conflict of interest and their duty is with the Court.

• Who is a medical negligence claim against?

This can differ on a case by case basis. If the injury arose at a Hospital, it will not be brought against the individuals treating you, rather it will be against the Hospital Trust itself. If however, there is a claim against a GP/dentist/optician, the claim will be brought against the individual.

• Will the doctor lose their job if I bring a claim?

As above, if the claim is against a doctor in a Hospital, the claim will be against the Trust rather than the individual. The individual may need to provide witness evidence and they may require further training to avoid the same mistake reoccurring.

If the claim is against a GP/dentist/optician, then as above the claim will be brought against the individual. Most of these clinicians will have relevant insurance in place which will cover cases of this kind.

• How will I fund my case?

A lot of people may be daunted at the potential costs of bringing a medical negligence case, however there are a number of funding options available.

1. No Win No Fee which is a conditional fee agreement between a client and their solicitor which covers the costs of bringing a claim. Essentially, if the claim fails, you would not be charged for the work carried out. If a case is however successful, you will pay a success fee from your compensation which can be up to 25% of your compensation received. In addition an insurance policy is taken out to cover your legal disbursements and cover your risk of being liable to pay any of the defendants costs This insurance premium is only payable if you succeed and is deducted from your compensation.
2. The second option is known as Legal Aid Funding, however this option is limited to cases involving children who have suffered an injury from birth as a result of medical negligence.
3. The third option is known as legal expenses cover. This may be provided by your home insurance either buildings or contents insurance policy and which covers you for medical negligence claims.

You may also wish to privately fund a case, which entails paying a solicitor for the work they carry out on your case.

Click here to find out more about funding medical negligence claims

• How soon do I need to bring a claim?

The general rule of thumb is that you must 3 years from the date of knowledge/date of incident commence court proceedings.  There are some exclusions to this rule, which include claims for children, who have until their 21^st birthday to bring a claim. If there are concerns about a patient’s capacity, the rule also changes.

• Will I have to go to Court?

Most medical negligence cases are settled out of Court with a settlement, however there may be a chance you may need to go to Court, albeit it is minimal. 

• What if the injured person has died?

A claim can still be brought on behalf of a person that has died, as part of their estate. If they have left a will, then the executor of the estate, with the assistance of a Grant of Probate will be able to bring the claim. If the deceased has not left a will, then the next of kin can bring a claim after applying for a Grant of Letters of Administration, which will allow them to bring a claim on behalf of the deceased’s estate.

The process can be daunting, and that is why it is important to have a specialist team of solicitors to advise you throughout. For further information, please contact the medical negligence team at Wilson Browne Solicitors on 0800 088 6004.