What is clinical negligence?

Whether you’re making a claim against an NHS practitioner or one working in private practice, the facts are the same; mistakes were made, you’ve suffered as a result and you shouldn’t be left paying the costs. Clinical negligence claims can be made against most types of medical professional:

• GPs or doctors
• Hospital staff – including surgeons, nurses and porters
• Dentists
• Cosmetic surgeons

If your treatment was given by a team of medical staff, the cause of the negligence can be harder to pin down, and your injury might actually have been caused by wider processes instead of the actions of one person. If this applies to your case, your solicitor might make your claim against a wider body, such as a hospital management team or NHS trust.

In all cases, the medical practitioner will be covered by ‘indemnity insurance’ against claims, as set out in legislation in the Health Care and Associated Professions (Indemnity Arrangements) Order 2014.

Although clinical negligence claims are basically the same whether the treatment was provided by the NHS or privately, in reality there are a few differences. The main point of difference is that the NHS has its own Litigation Authority (NHS Resolution), an independent body which deals with any claims made against it.

The health service is also covered by a written constitution which outlines the right of any patient to complain, to have their complaint dealt with efficiently, to be told about the findings of any investigation into their complaint and to receive compensation if they’ve been treated negligently.

While your solicitor will put your case together to prove that clinical negligence happened, there are several pieces of evidence that you can give to them to help prove your case:

• photograph any physical injuries you have suffered
• write an account of what happened to you and how it has affected you
• keep receipts of any expenses you have had because of your injuries (eg. travel to and from hospital, private corrective healthcare, medication etc)
• any records of the treatment you received that led to the clinical negligence

For your solicitor to put together a clinical negligence claim, they will need to help you prove the following:

Winning a clinical negligence claim means proving the treatment breached the duty of care, and that this negligence led to your injury or illness. If you’ve received any medical treatment from a qualified professional, then the chances are that they owed you a duty of care by default.

You’ll need to be examined by an expert medical professional, who will then produce an official report on the extent of your injuries and the amount of damage they have caused. This will help to understand how much you might receive in compensation if you win your case. Your solicitor will help to arrange this for you and talk you through the process, so there’s no need to worry.

If you think you may have suffered negligent treatment whilst under the care of a medical professional, it can be really hard to process that someone who you have essentially trusted with your life has let you down; and because of the size of the NHS, it can feel like there’s nothing you can do about it – but that’s not the case.

The NHS has its own complaints procedure which allows anyone who has suffered an injury to complain about their treatment.

There is also NHS Resolution, an independent body which deals with any claims made against the NHS. NHS Resolution tries to settle claims within 12 months, but it can sometimes take much longer, especially if the member of staff involved denies negligence.

Asking the NHS to review your negligent treatment can be a useful way of unearthing what happened, to give you stronger evidence to bring a clinical negligence case.

This is where the expert medical reports become important. Your clinical negligence solicitor will ensure you are examined by a medical expert who will assess your injuries and if they decide on the balance of probabilities that the medical professional in question was responsible for the harm you suffered, you’ll be free to continue your compensation claim. Claiming compensation isn’t a case of ‘punishing’ the medical practitioner. It’s a way of giving recognition to the suffering you’ve had to go through and making sure you don’t end up financially worse off.

In some cases whilst the dispute is being settled, you might be able to receive an interim payment, so that you can start to rebuild your life while the rest of your compensation is being negotiated for you.

It’s unlikely that you’ll need to go to court for your case, but you might if the standards set by Pre-Action Protocol for the Resolution of Clinical Disputes are not followed. It sets time limits for the exchange of information and promotes medical or rehabilitation treatment to help the person affected by negligent medical treatment at the earliest opportunity. It also encourages all parties involved in the clinical negligence claim to find alternatives to going to court, such as settling early out of court.