Clinical and Medical Negligence

Q1. What is clinical negligence?

All healthcare professionals owe a duty of care to their patients. This means they must work at a standard in accordance with accepted practice and to provide all reasonable care in the provision of their particular treatment or therapy. Negligence usually occurs when the professional’s actions fall far below this standard, perhaps due to a mistake or poor judgment.

Q2. What does ‘clinical’ mean?

‘Clinical’ in the term ‘clinical negligence’ is a catch- all word used to describe all aspects of health care and treatment. The phrases Clinical and Medical negligence are often used interchangeably. Clinical negligence encompasses not just hospital treatments but includes care by any professional providing healthcare treatments or therapies such as a dentist, pharmacist or chiropodist for example. Sometimes the negligence may relate to a surgical mistake, sometimes it may relate to deficient nursing care. The word ‘clinical’ is just a generic description for something healthcare-related.

Q3. Do I have a case for clinical negligence?

As indicated in question (2), there are many different types of claim. However, successful claims have common elements, and whether you have a case is dependent on whether you have the required elements, namely;

a) Whether your care is negligent (ie, below standard). This means you must demonstrate your care was below the standard of a ‘reasonable body of practitioners’.

b) Whether you have suffered injury or illness resulting by reason alone of (a) above. This may seem straightforward but can be difficult to demonstrate due to the need to separate what illness was present before the incident and what illness happened as a result of the incident.

Q4. Should I complain first?

Yes. Bringing a complaint will help you to gain answers to what has happened and perhaps why particular decisions were made. It may also trigger an apology or admission.

Healthcare providers have a ‘Duty of Candour’ meaning they have to be open and honest with you about mistakes. If you are unsure or concerned about making a complaint, remember that you can discuss your concerns with us confidentially either before or after the complaint stage.

Q5. Will bringing a claim affect my ongoing treatment and care?

It really should not. If you complain or instruct solicitors, this should not affect your ongoing treatment. However, if your complaint is about the treating clinician, clearly the patient/doctor relationship might be affected and you may want to consider asking to be referred to another specialist. If you are unhappy with your specialist, being referred elsewhere may of course be better all round.

Q6. Is there a time limit?

There is a strict deadline applying to clinical negligence claims. Formal Court proceedings must start within 3 years of the actual incident or your knowledge of negligence occurring. There are exceptions to this rule but working to the three year principle is the safest approach.

Please note that the 3 year deadline is not a trigger date for you to start action! There is a lot that can be and should be done within the 3 year period. The justice system has created a formal pre-Court process to follow to resolve clinical negligence disputes. This process frequently results in a successful settlement without the need to go to Court.

Q7. Do I need to go to Court?

Not necessarily. In fact, many cases settle without the involvement of Court under the pre-action process (see above).

Q8. What happens if the actual patient has died?

Claims can be brought by the Estate of a deceased, the personal representatives of an Estate or Executors, have the authority to instruct solicitors and pursue claims.

Q9. What does it cost? How can I pay for it?

The legal costs in pursuing a claim can be high, particularly if a case goes to Court. Fees are made up of solicitors’ costs and specific expenses like the cost of medical reports.

There are, however, various options available to fund a claim and make it financially possible.

Some cases are suitable for No Win, No Fee Agreements, also known as Conditional Fee Agreements. For more information on the operation of our No Win, No Fee Agreements, to include insurance we recommend to run alongside the No Win, No Fee Agreement, which should ensure that anything you do need to pay in costs is kept to a minimum – do contact us.

In the alternative, you may have the benefit of pre-existing insurance (often appended to home insurance) to cover any legal claims you may encounter.

Legal aid is generally not available following changes in the law.

As above, insurance to cover the cost of specific expenses can also be taken out, if your case is suitable, whether at the time of the litigation or before your claim is formally started, whichever appears most sensible in the circumstances.

Q10. How much can I expect to win?

This is very difficult to answer as each case is different. The level of compensation is specific to each individual case. Compensation is generally made up of two elements; a figure for the pain and suffering, and a figure for any out of pocket financial expenses (which can include the cost of care provided by a relative). The pain and suffering element is often calculated by reference to similar cases and will reflect the impact on daily life.

Find out about Battens' support to pursue medical negligence compensation claims.