Medical negligence – when can you claim?

When you put yourself in the hands of medical professionals, whether it is your GP, a district nurse, or a specialist surgeon, you trust them to provide a standard of care you would expect from a highly trained medical professional. Your life is in their hands.

Sadly, not everyone’s experience of their medical treatment is a good one. Whether it be a mistake with a diagnosis, treatment or a serious error in an operative procedure, the result can be devastating not only to the patient but also to their loved ones.

Medical negligence does happen. When it impacts your life you require expert legal advice on how best to get the compensation you deserve and, as in many cases where life-changing injuries are the result, urgently need.

What is medical negligence?

Medical negligence is very precisely defined. It is sometimes referred to as clinical negligence and is a failure to provide a patient with ‘adequate and appropriate’ healthcare. This failure results in the individual suffering either a worsening of their condition or complications that otherwise would not be expected to occur had the correct course of action been taken. To prove medical negligence you have to establish a breach of duty to provide reasonable care and that you have suffered harm as a direct result.

There is a legal test for medical negligence known as the Bolam Test. A breach of duty will not be established, and a medical negligence claim may fail, if the medical professional acted in the same way as any other body of professionals of a similar level of expertise and experience would do so in the same circumstances.

The Bolam Test is not, however, a ‘get out of jail free’ card for the medical profession.  For example a Surgeon failing to inform you of the risks of an operative procedure could still face a medical negligence claim.

Medical negligence can include:

  • Failure to diagnose a condition or making an incorrect diagnosis.
  • Failing to provide a patient with the correct information regarding the risks of an operative procedure so that they can give informed consent.
  • An error during an operation or procedure.

What’s a ‘never event’?

A ‘never event’ is an event that should never occur during a medical procedure, for example, leaving a piece of gauze or even a surgical instrument inside a patient during an operation. Despite the name, ‘never events’ can and do occur, and in many cases result in a medical negligence claim by or on behalf of the patient.

Can you take legal action on someone else’s behalf?

If you are the closest relative of someone who has been injured and is unable to pursue a claim for themselves (such as dementia sufferers) or has died as a result of a medical negligence, you can pursue a claim on their behalf. Parents and guardians of children under the age of 16 can also pursue a claim on the child’s behalf as their Litigation Friend.

Is there a time limit?

You have three years from the time of the act of negligence, or from when you became aware or ought to have been aware of such, to issue a claim for medical negligence. If the person affected is a minor then the three-year limitation period starts from their 18th birthday.

What are my chances of a successful outcome?

The vast majority of medical negligence claims are settled out of court, and fewer than two out of every 100 cases brought against the NHS result in a court case. The rest are settled out of court or dropped by the person bringing the claim.

These are however often difficult cases. It is essential that an experienced lawyer assesses the merits of a claim at an early stage so that a potential claimant is fully appraised of the risks from the outset.  With the right legal advice in appropriate cases you can have a good chance of winning your case. Establishing that the pain and suffering is a direct result of breach of duty is paramount to succeeding in a medical negligence case. This is where expert legal advice and guidance as to the appropriate experts to instruct is crucial. If you do bring an action against an individual or an NHS Trust you can claim compensation for the pain and suffering caused and for financial loss to cover ongoing treatment including physiotherapy, the cost of additional care or home adaptations as well as loss of earnings.

Medical negligence is rare. If unfortunately it happens to you or a loved one make sure you have the best medical negligence solicitors fighting for your rights and the compensation you deserve.

If you would like to talk in confidence to an expert about a medical negligence claim, please email or phone 020 8349 0321.

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