What is “clinical negligence”?

Breach of a duty of care

Doctors and nurses are generally regarded as providing excellent, caring service for their patients. Nevertheless, if you, your spouse or child, have been injured, or if you are the dependant or child of a patient who died, as a result of medical treatment you are, at the very least, entitled to an explanation. A treating doctor, in fact, is required by his governing body, the General Medical Council www.gmc-uk.org, to inform a patient when that treatment has gone wrong.

Where the injury or death was caused or contributed to by the breach of a duty of care committed in the course of the provision of clinical or medical services, including dental or nursing services, you and/or your child may be entitled to financial compensation for what is termed “clinical negligence”, formerly – and often still – described as “medical negligence”.

If you were treated as a private patient, and paid the doctor, either yourself or through your medical insurer, you may also be able to claim for breach of contract if your medical treatment was substandard.

Personal injuries, including brain damage and psychological injury such as nervous shock, or death can occur in all clinical specialities.

Medical claims can arise out of, for example, accident and emergency, anaesthetics, cancer treatment, cardiothoracic surgery, cardiology, gastroenterology, general practice, keyhole surgery, mental health, neurosurgery, obstetrics and gynaecology, oncology, ophthalmology, orthopaedics, paediatrics, plastic surgery, psychiatry, radiology, sterilisation, urology, vascular surgery and many more.

Doctors have been found in breach of a duty of care for, among other things, failed or delayed diagnosis, failure to warn of risks in treatment, failure to obtain proper consent to treatment, medication errors, careless surgical procedures, delayed referral to specialists. Negligence can also arise out of system errors in the hospital where the treatment took place. Most cases concern registered medical practitioners (doctors and surgeons). But similar principles apply to dentists, midwives, nurses, physiotherapists, psychologists and psychiatrists.

New issues are constantly arising, for example, the retention of organs and tissues following post-mortems, use of unsterilised instruments, early failure of replacement hips, misinterpreted breast screening and cervical smear testing, liability for hospital-acquired infections. Clinical negligence can overlap with another area where litigation has expanded in the last two decades: consumer safety involving product liability for drugs and vaccines, for example, where a general practitioner is accused of administering an inoculation despite contra-indications.

A claim against a medical professional for injuries arising out of a medical accident is completely different from a claim for personal injuries caused in, say, a road traffic accident. In the latter case it is usually straightforward to establish whether or not somebody was at fault and whether any injuries were suffered as a result. But to succeed in a clinical negligence claim you must prove, through the evidence of medical experts qualified in the speciality concerned, that, on a balance of probabilities (ie, it was more probable than not)

(1) that there were serious errors in your medical treatment which no competent doctor would have made; and

(2) that those errors caused, or materially contributed to, the injury you are complaining of.

Where can you find clinical negligence law?

Clinical negligence is a complex and highly specialised area of the law. Because it involves the issue of professional negligence it has legal principles and rules of procedure which differ from those covering other personal injury claims. Where do you find these legal rules?

Textbooks on the subject can be expensive for the layman. For example the recently published 5th edition of Clinical Negligence (Powers and Barton), perhaps the leading work in this field, is priced at £450 at Bloomsbury Professional/A>. It is a magnificent treatise written by a team of 54 legal and medical experts. Nevertheless it is mainly intended for lawyers and medico-legal experts. And because the subject is so dynamic hard copy text books are quickly out of date.

Have you suffered through a medical accident?

People who suffer injury from a medical accident are often emotional and upset. Blaming the doctor may appear to be the only course. He did it; he must be to blame. The seriousness of the original medical complaint, and the risks frequently involved in medical treatment, may be forgotten. We have been covering this subject for over twenty years. We know that litigation can mean years of worry. Quite possibly financial loss which could be huge.

Remember: Lawyers on legal aid will make money whether you win or lose.

You must try to put emotion on one side, consider how serious your true loss is and ask yourself: “What do I really want? An investigation and explanation? An apology? To make an effective complaint that will help to prevent similar accidents?”

Should you consult a solicitor?

You could, of course, instruct a solicitor to act for you in making a complaint only. But if you, or your child, needs financial compensation to pay for lost income, remedial medical treatment, future care and equipment, then you must see an experienced clinical negligence solicitor as soon as possible. He or she has the experience to make an initial assessment of your claim and advise whether it is worth investigating.

The quality of advice given by solicitors in this field varies enormously. There are, it is believed over 250 firms of solicitors on the Law Society Clinical Negligence Panel. If you visit their websites you will find all sorts of claims being made. But our researches show that only a handful of firms, most of whom are our Subscribers, successfully handle the bulk of serious litigation in court.

Winners – and losers …

Figures from the Legal Aid Agency www.gov.uk/government/organisations/legal-aid-agency and the National Audit Office www.nao.gov.uk, which only we have analysed and published, showed that in cases funded by legal aid some solicitors win over 70 per cent of their cases, while others lose around 80 per cent.

If you, or your child, were injured by a medical blunder who would you want?

But who are these winners? With a successful track record of litigating complex clinical issues? With access to eminent medical experts experienced in testifying before a judge – under hostile cross-examination? With innovative and creative financing arrangements to ensure that “no win” really does mean “no fee”? And, most importantly, with the knowledge and experience to negotiate a successful settlement, perhaps in a complex brain injury case with millions of pounds in future case costs at stake? Can anyone tell you? Certainly not the Law Society or Legal Services Commission!

We can. Because we have been monitoring medical litigation for twenty years.

The Firms of Solicitors on our interactive map have long-established reputations, are highly ranked by independent legal directories and, as our Annual Subscribers, have access to our Confidential Indexes of Expert Witnesses and Counsel – available to no-one else. Unlike the “claims farmers” we receive no fee if you consult them. But each Firm pays a nominal sum of £150 enabling us meet the costs of this regularly updated free access site.

There may be other successful lawyers but why take the risk?

You must be aware that the vast majority of claims made to a solicitor get no further than the initial stage because the solicitor’s expertise enables him or her to assess the chances of the claim succeeding. It is not usually viable to run a claim that does not have at least a 60 per cent chance of success. There are also problems with advancing claims valued at less than £10,000 although the true experts have creative strategies which can effect recoveries of even smaller amounts.

In those cases that do proceed further, after your solicitor has advised you that you may have a valid claim, he will discuss his terms and finance. He will obtain, with your authority, your medical records from the hospital. These will be passed by the solicitor to a medical expert in the specialism involved who is experienced in giving evidence in clinical negligence cases not merely simple personal injury claims. Once the expert has provided a positive report your solicitors can weigh up more fully the risks involved, assess the potential compensation which you – or your dependants – might obtain and consider how the claim will be funded, the possible strategy and tactics.

The NHS Redress Bill

The government has recognised that the present system is complex, slow and costly. On June 30, 2003, the Chief Medical Officer published a key report Making Amends which made a total of 19 recommendations for reforming the approach to clinical negligence in the NHS. The report proposed, among other reforms, a new NHS Redress Scheme, changes in the NHS Complaints Procedures, a duty of candour within the NHS, consideration of mediation before litigation. More controversial proposals included the capping of damages awarded to brain-damaged children, and the provision of necessary healthcare through the NHS rather than private facilities. These proposals, it was promised, would following detailed consultation, be written into a definitive statement of policy later in 2003. The government has, in fact, adopted only one of the 19 original recommendations: On October 12, 2005, the NHS Redress Bill, an enabling provision, was introduced in the House of Lords www.publications.parliament.uk/pa/ld200506/ldbills/022/2006022.htm. The Bill, which has been strongly criticised by the all-party Constitutional Affairs Committee www.publications.parliament.uk/pa/cm200506/cmselect/cmconst/1009/1009.pdf, created a furore on publication as it would have put the scheme under the control of the NHS Litigation Authority – which in fact defends all clinical negligence claims against the NHS!

To conclude this Part, if you believe that poor medical treatment has caused you pain, loss of income and costs, for example for past and future care, submit the claim form at the top of the page. >Do not delay! Because

(1) the law allows you only three years from the date of the accident to start proceedings but there are important exceptions, particularly in clinical negligence, which an experienced solicitor can advise you about;

(2) your solicitor will need time to investigate your claim, obtain your medical records, send them for medical expert opinion, perhaps instruct counsel, a barrister experienced in clinical negligence, organise case meetings – and open negotiations with the other side;

(3) if the claim involves a death your solicitor may, after discussing it with you, decide to attend any coroner’s inquest as the evidence and verdict given could prove extremely important in your claim.

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