Making a Medical Negligence Claim

Defining a Medical Negligence Claim

You can make a medical negligence claim if poor medical treatment is directly responsible for you receiving an injury or else the care you received was inadequate. There are various other names for this including ‘medical accident claim’.

Medical negligence claims are not necessarily made because the treatment itself was negligent. While it is possible that better care or greater adherence to safety procedures could have stopped the accident from occurring, there is also the distinct possibility that the accident could not be prevented. Medical negligence claims are among the hardest cases to deal with and this is noted by the UK legal system. Yet they are commonplace with the Public Accounts Committee (PAC) claiming that 10% of patients in UK hospitals are affected by medical negligence. This is estimated to equate to one million patients a year.

Liability for Medical Negligence Claims

As with any personal injury claim, a medical negligence claim will only have a chance of being successful if you can prove that the injury you suffered came directly as a result of the negligent actions of someone who had a duty of care to you. Obviously, your doctor has a duty of care to you but it is far more difficult to prove that a doctor or hospital are to blame for your injury which you say resulted from an illness contracted when within the hospital, a misdiagnosis on the part of the doctor or some other reason. This is in contrast to a personal injury claim where it is easier to prove that an employer was to blame for not having adequate warning signs near a hazard.

How to prove that Medical Negligence occurred

It is not easy to prove that a doctor or nurse were negligent in their treatment of a patient. In fact, the law only enables patients to make medical negligence claims if they can show that in all probability the treatment they received was of a negligent nature and was a direct cause of an injury to their person. Though it is difficult to prove, there are several instances where it is possible for a patient to claim that medical professionals have failed in their duty to provide safe treatment for their patients.

Some of these are:

• Incorrect diagnosis of an injury or illness or a delay in making the diagnosis
• Proof that medical staff did not act quickly enough after receiving test results
• Poor execution of an operation or procedure
• Errors made when distributing medication or treatment
• Follow-up procedure was insufficient
• Not explaining the full dangers of a treatment or procedure to a patient before administering it

When making a decision, the court will decide if a competent doctor would have made the same choices in the same situation as the defending physician. Essentially, even if it can be proven that a doctor’s actions resulted in your injury, if the court decides that their actions under the specific circumstances were reasonable and that they acted with sound judgement, they may not be charged with negligence.

Assessing a claim for injury or damage

Regardless of whether it is a medical negligence claim or something else, you cannot make a personal injury claim unless you can prove that you suffered an actual physical or psychological injury. Even if it is shown that the medical staff at a hospital acted in a negligent manner, without an actual injury you will have no medical negligence claim. Unless you can prove that a near miss, while not causing actual bodily harm did have profound psychological consequences, you will have no claim.

Date of Knowledge

This is generally considered to be the date when you sustained the injury. Therefore, you should act quickly and contact a solicitor to get the wheels in motion. No matter how serious your claim is, if it is made after the three year period afforded to you by the Statute of Limitations, your medical negligence claim will be deemed invalid. However, medical negligence claims are different from normal personal injury claims because there are exceptions to the Statute of Limitations. For example, if you suffer from an illness that went unnoticed due to a misdiagnosis, the date of knowledge could be hard to prove. This means that it is essential to contact your solicitor even if the three years seem to have elapsed because of the possibility of the date of knowledge being different to what was assumed.

Child Injuries

The situation becomes slightly more complicated when it comes to children and medical negligence claims. Minors are not affected by the Statute of Limitations until they reach the age of 18. The three year time limit only begins once they become an adult so effectively, they can make their medical negligence claim until they are 21. If they decide to pursue the claim before reaching adulthood, their parent or guardian can act as their ‘next friend’ in the case. Despite this additional time, it is still wise to contact your solicitor to talk about the case as soon as possible.

What to do if several parties are to blame

There is the possibility that the person making the medical negligence claim had already been injured in another accident and believes that the hospital failed in its duty to take proper care of them. This means that poor medical treatment was not the cause of the injury but it did make things worse. In this instance, a percentage of blame may be apportioned between the two (or more) parties which means that the defendants have to pay an amount that reflects the amount of liability they have for the plaintiff’s injuries.

Establishing the value of Medical Negligence Claims

Medical Negligence Claims and the issue of liability

There are a variety of factors involved in determining the value of your claim. One of these is when the parties involved in the accident are in dispute over liability. Medical negligence claims are not always black and white though there are certainly many occasions when the medical team providing the treatment is 100% at fault. Yet there can also be a plethora of other factors that caused the injury of the plaintiff including their own actions. In this instance, how is liability determined? Should the plaintiff lose all rights they have to compensation because of their own negligent accidents that helped lead to the accident?

In a medical negligence claim, when the plaintiff is proven to have contributed to their own injuries through unsafe actions this is known as contributory negligence. With regards to medical negligence claims, this could occur when the patient helped make the illness or injury caused by the negligence of the hospital worse by refusing to cooperate with doctors or nurses. This could be failing to show up for appointments or rejecting medication provided that could have helped heal the injury or cure the illness. The contributory negligence of the patient is then weighed against that of the hospital staff and if it is determined that the plaintiff’s negligent actions were greater than that of the hospital, they could fail in their case or at least lose a large percentage of what they hoped to receive in compensation.

Trauma

Compensation is paid for injuries suffered due to the negligent actions of the hospital’s staff. The incident itself is not as important as the injuries sustained unless you can prove that it caused psychological strife. Nonetheless, your solicitor will make a point of highlighting the trauma and panic suffered by the plaintiff in order to gain sympathy at negotiations for the trial in the hope that your case will be seen in a better light.

Special medical damages and types of injury

Usually, the fees charged by specialists for any treatment you have had to receive as a result of the injury will be compensated in full. Even though certain injuries are more painful than others, the value of a case depends on the seriousness of the injury and whether there are visible (scars) or not. The length of time it takes to recover and persistence of the injury will also be considered.

Making a Prognosis

If an injury is believed to be of a permanent nature or else it is determined that it will take many years to heal, then it will result in a larger amount of compensation. The age of the victim is also important -  the younger someone is, the longer they are expected to have to deal with an injury. For example, should a 25 year old man lose a hand, they are expected to have to live without that limb for 60 years or more. A man of 65 who suffers the same injury will have to live with the injury for maybe 20 years, possibly less. Clearly then, the younger the victim the higher the rate of compensation. If a doctor testifies that the plaintiff must have more specialist treatment in the future, this will again cause the compensation rate to rise.

Quality of Life, Medical History and Persistence of Pain

Although our careers are important, they are not the whole of our lives. Other aspects of a person’s life will be considered when a medical negligence claim is made. Clearly, no two people are the same as interests and hobbies alter from person to person. If an avid sportsperson is confined to a wheelchair for a period of time  this may be seen to be an even more devastating occurrence than for someone whose passion is writing.

It is also important to assess the medical records of anyone who makes a medical negligence claim. If it can be proven that you have had serious injuries to the same area of the body that has been hurt in your claim then it may be negatively affected. The defendant’s team will try and find out if the injury sustained already existed and the medical negligence claimed by the plaintiff actually only aggravated the injury rather than causing it.

As all personal injury compensation claims revolve around the severity of the injury suffered by the plaintiff, the pain suffered and the persistence of the injuries will affect the amount of compensation that the plaintiff can hope to receive. The greater the injury’s persistence, the higher the payout will be.

The Loss of Earning Power

Technically, this is a different animal and is not related to medical negligence claims. Nonetheless, it causes confusion and headaches for clients and solicitors alike. One problem faced by solicitors is that of disgruntled plaintiffs who compare their case to a similar one they read about in the news where the victim claimed £100,000 more than them.

What they fail to realise is that the other person’s case may have different circumstances entirely. For example, the plaintiff in the other case may have spent longer out of work so were entitled to more compensation for loss of earnings. Or else they may simply have a job that pays significantly better. The seriousness of the injury is only relevant in this instance when it determines how long the plaintiff will spend out of work due to injuries sustained. The individual’s profession must also be taken into consideration. A hand injury to an artist would be more serious than it would be for a fashion model.

No Win, No Fee

If you feel that you have a legitimate medical negligence claim, contact your solicitor now for a no win, no fee claim. If you win the case, you will receive a tidy sum of money and the legal bills will be paid by the defendant’s insurer. If  your case is not successful, you will not have to pay a penny as all costs will be covered by your solicitor’s legal firm.