Clinical Negligence – Do You Have a Claim?
Every year millions of people undergo medical procedures. This involves individuals putting a large amount of trust into the hands of the professionals caring for them.
Some however do not receive the standard of care they should expect to receive, for example:
- Where there has been an incorrect diagnosis or a failure to make a diagnosis
- Where the wrong drug has been administered
- Where a mistake has happened during a medical procedure or operation
- Where a patient has not been informed of the risks associated with a medical procedure
- Where a patient has not consented to a medical procedure being carried out
If you have complained about the standard of treatment you have received and are not happy with the response or feel you have suffered because of the negligent care or treatment you received, you may be considering making a claim for clinical negligence.
Do you have a clinical negligence claim?
The first step is to confirm whether you do in fact have a valid claim. This is rarely straight forward, and will require an assessment of the facts of your case by a specialist clinical negligence solicitor.
To have a claim, you will need to satisfy a number of legal requirements through evidence. You will need to be able to show the practitioner was negligent and at fault, and that their actions fell below the standard expected of individuals in that position. You will then need to show that the negligence directly resulted in harm, loss or injury to you.
It will not be enough that treatment failed or was not a success. Similarly, it is not enough that something ‘went wrong’ – you have to show that you suffered harm as a direct result of that negligence.
Strict timeframes apply to clinical negligence cases. A claim for clinical negligence has to be made within three years of when the incident / treatment took place or when you first became aware that you had suffered a resulting illness or injury.
Can I claim on behalf of someone else?
You can make a claim on behalf of a child or someone who is incapacitated if you are their next of kin.
If the claim is for a child, the three-year time limit doesn’t come into effect until they reach their 18th birthday.
If the claim involves someone who is incapacitated because of a mental disability, the three-year time limit doesn’t start until (and if) they recover.
You may also be able to make a claim if you are the next of kin of someone who has died. If the person you are claiming for has passed away, the timeframe for bringing a claim is three years from the date of their death. If the person dies whilst the claim is ongoing, you have three years from the date they passed away to continue with the claim.
What evidence will be needed?
The burden is on you, the claimant, to prove that there has been negligence and that you have suffered as a result.
The evidence will need to prove that:
- That the healthcare professional owed a duty of care to you not to cause injury
- There was a duty of care breach
- That the breach of duty of care has caused you harm
- Damages and other losses (such as loss of earnings) have resulted from the harm caused by the breach of care
Your solicitor will lead on sourcing and collating the required evidence and presenting it as part of your claim.
The most challenging area of evidence in clinical negligence claims is typically proving that the negligence directly caused the harm – and that the harm was not for example as a result of an underlying condition.
This will require your solicitor to take advice from medical experts specialising in the field of your injury, taking into account your medical history, the events surrounding the negligence and your subsequent health condition.
How much compensation could I expect?
As part of your claim, you will need to provide a schedule detailing losses and costs that you are seeking to recover. The value of a clinical negligence claim will however ultimately be determined by the court on the facts of each case. Factors that will be considered include the severity of the negligence, the nature of the injury, any your loss of earnings and impact on future care needs earnings.
How long does a claim take?
You should expect your clinical negligence claim to take from 18 months for more straight-forward cases to over 3 years for complex claims. The timeframe will be largely determined by the defendant’s strategy (whether for example they accept liability but are challenging resulting injury) or and the complexity of the claim.
Why take legal advice from an experienced clinical negligence solicitor?
The impact of clinical negligence can be long lasting and may impact on your personal life and your ability to work and provide for your family.
But proving clinical negligence can be difficult, demanding both legal and medical knowledge and insight to build the evidence that proves your case.
This is where the advice and guidance of an experienced legal professional will greatly benefit your claim. They can advise initially on the merits of your claim, and where you do have a claim, guide and support you through the legal process.