What is medical negligence?
Medical negligence, otherwise known as clinical negligence, refers to an area of law whereby the individul has suffered harm as a result of the action, or inaction, of a Professional. This can either be by way of a new injury being caused as a result of the Professional’s actions, or the Professional causing a pre-existing condition to get worse. The Professional may have done something positive to cause the harm, or they may have failed to do something which led to the harm arising, or the harm led to the harm becoming worse than it otherwise would have been but for the Professional’s failure to act.
How to make a claim for medical negligence
Our team of solicitors will be able to guide you through the entire process of bringing a claim against a private hospital, NHS Trust, care home or other relevant professional (such as a GP). Contact our team on 01392 573 599 to discuss the first steps in this process.
Time limits for bringing a claim
We suggest that you contact us as soon as you aware of harm which has a resulted from any potential negligence. This is because the courts impose a time bar upon claims which can be brought by Claimant’s for medical negligence. The time limit for bringing a claim for harm resulting from medical negligence is three years, and begins to run from the later of these two dates:
- The date which the injury was caused; or
- The date on which the person injured had ‘knowledge’ (defined below)
For the purposes of (2), the date of knowledge is determined from the date at which:
- You knew that the injury was significant; and
- You realised that your injury was attribute to a negligent act (or failure to act); and
- You become aware of the identity of the Defendant
The latest date in this sequence of events is the date from which the time limit for bringing a claim will run.
In most cases, these dates will be contemporaneous (i.e. occur on the same day). However, an example of where the date of your knowledge may be delayed is where you are told in the first instance that your symptoms are normal but on a second opinion you are made aware that the symptoms are not normal and may have been the result of negligence of a Professional.
The court does have a general discretion so as to disapply this time bar. However, the courts rarely exercise this discretion, which is why it is of the utmost importance that you take steps to commence your claim as soon as you can.
Types of claim (non-exhaustive list)
There are a variety of situations where harm as a result of medical negligence can arise. Below is a list of some of the most common categories under which a medical negligence claims can fall. If your case does not seem to fit within one of these categories, this is not so say that you do not have a claim; this is merely an indicative list of the most common types of claim.
Claims can arise in this area where the diagnosis of your cancer has been delayed, either due to a misdiagnosis in the earlier stages, or a failure to diagnose the cancer when it would have otherwise been discovered by a proper examination.
As a result of failures by a Professional in this area, your chances of recovery may have been significantly reduced. Alternatively, you may have to endure more gruelling treatment due to the development of the cancer in the time that it took you to obtain a proper diagnosis. If you suspect that this is the case, contact one of our specialist solicitors to see whether you may be able to claim compensation for your losses.
As members of the public, we are often advised that our GP is the first port of call for any non-life threatening issues which we are experiencing. Another common category of claims relate to those where a GP has done something which has caused you to suffer harm, or where a GP has failed to do something which could otherwise have prevented the harm arising.
For example, GP negligence can arise in situations where you have reported symptoms to your GP and they have failed to conduct the appropriate tests following your reporting of these symptoms. Equally, your GP may have failed to refer you to a specialist where a specialist referral was warranted. Your GP may have failed to ask you the appropriate questions when discussing your symptoms with you, or they may have failed to take into account your allergies or a relevant past medical history when prescribing you a new medication. Your GP may have failed to diagnose a condition in light of your symptoms, or may have misdiagnosed your condition.
Negligence by medical professionals during childbirth can have devastating and long-lasting consequences for either, or both, mother and child. During childbirth there is a broad scope for things to go wrong if the correct procedures are not followed by the medical professionals involved in the birth.
Claims can be made by, or on behalf of mothers, who have, for example, experienced perineal tears, issues suturing perineal tears and injury to internal organs during caesarean sections caused by the negligence of a medical professional.
Claims can also be made on behalf of the child who has, for example, sustained a brain injury as a result of the birthing process, sustained a fracture or cut during the birth, or has developed Cerebral Palsy as a result of negligence during the child’s birth.
When you attend hospital for whatever reason, you are owed a duty of care by the medical professionals who are involved in your care. If the standard of care falls below that which could reasonably be expected by a healthcare professional, and you suffer harm as a result, you may be able to claim for compensation to cover your losses as well as the costs of your ongoing care, if necessary.
If you have attended a NHS hospital, you would bring a claim against the NHS Trust responsible for that hospital. If, however, you have attended a private hospital, you would bring a claim against that private hospital.
There are a range of things which can go wrong whilst you are in hospital. However, not all of these will amount to negligence; each case is decided on a case-by-case basis according to its facts.
Some common examples whereby negligence has been found against a hospital (or NHS trust) are situations where errors have occurred during surgery which have led you to suffer harm which you would not have otherwise suffered had the surgery/procedure been carried out to a proper standard. Equally, the surgical error could have led to your condition becoming worse than it otherwise would have been had you not had the surgery at all.
Another common example of hospital-related negligence are those related to pressure sore development whilst in hospital. Due to a decrease in mobility, individuals who become bed-bound or experience restricted mobility whilst they are in hospital for whatever reason are at an increased risk of developing a pressure sore. If the patient is unable to reposition themselves (i.e. move when they are uncomfortable), it is reasonable to expect that the patient who has been identified as being at risk of developing a pressure sore be repositioned by hospital staff on a frequent basis throughout the day and night.
If your relative has contracted MRSA whilst in hospital, there may be grounds to argue that the hospital was negligent in failing to prevent the spread of the infection such that your relative has now come to harm as a result of contracting an illness which they would not have contracted had the appropriate infection control measures been in place.
There is also potential for a negligent standard of treatment to arise whilst an individual is in A&E, and there is a failure on the part of the hospital staff to conduct the appropriate tests or a failure to refer the patient to the appropriate specialist in time, or at all.
Care home negligence
For the period that your relative resides in a care home (either residential or nursing), they are owed a duty of care by the staff within the care home to ensure that they are cared for and come to no harm. Unfortunately, there are occasions where the standard of the care provided by staff can fall below that which is expected of reasonably competent carers and/or nurses, such that your relative may suffer harm as a result of the staff’s action, or failure to act when they should have done.
Common situations in which care homes have been found liable for negligence include those relating to the wrongful administration of medication. This can either be through staff giving the wrong dosage of your relative’s prescribed medication, or giving medication which your relative is not actually prescribed. Such wrongful administration can have very severe consequences, especially if your relative has an adverse reaction to the medication as a result of this wrongful administration.
Another scenario where care homes could potentially be liable for negligence is where they have failed to take adequate steps to prevent your relative from having falls, and your relative has come to harm as a result of one, or a number of, falls. Whilst some falls are unavoidable, particularly for those individuals suffering with a cognitive impairment caused by dementia, Alzheimer’s and/or Parkinson’s disease, there are certain steps which care homes can take so as to minimise the risk of your relative falling. For example, in some situations, a referral to a ‘Falls Prevention Team’ may be appropriate. Equally, if the risk of your relative falling is very high, regular or constant 1:1 supervision may be the only appropriate means by which to manage your relative’s risk of falls.
Allowing the otherwise preventable development of pressure sores is another situation where a care home could potentially be found liable for negligence. As an individual’s mobility and ability to care for themselves deteriorates, the risk of developing a pressure sore greatly increases. Your relative relies on the vigilance of the staff who carry out personal care to ensure that, if your relative is at risk of developing a pressure sore, your relative has the appropriate pressure-relieving equipment in place (such as an air or foam mattress, and a cushion to sit out on during the day), your relative is regularly repositioned if they are unable to do so themselves, and the necessary creams are applied as prescribed to minimise the risk of skin breakdown associated with incontinence.
Care staff are often very vigilant in monitoring an individual’s skin condition and are quick to report any deterioration to the senior in charge and/or the District Nurses. However, mistakes can occur and pressure sores can go unnoticed. If you suspect that your relative’s pressure sore has developed due to the care home’s negligence, contact one of our specialist solicitors to discuss whether you have a claim.
Failure to diagnose sepsis early on within a patient’s care can, in extreme cases, be fatal. If the patient does not pass away due to sepsis, the patient can nevertheless be left with lasting and life-changing injuries.
The basics of a claim
The rules of tort law will be applied to determine whether your claim should succeed. Within the context of medical negligence, this involves demonstrating three elements (listed below). As the Claimant, you bear the burden of proving, on the balance of probabilities (i.e. over 50%), that the Professional breached their duty of care owed to you, and this breach caused the harm from which you are suffering.
- Duty of care – when admitted to hospital, or when taken into a care home, all healthcare professionals within that environment owe a duty of care to the patient.
- Breach – the duty of care owed to a patient will be breached if it can be said that the standard of care received by the patient has fallen below the standard which would be expected of a reasonably competent professional within that speciality (if there is one). This means that, for example, the standard of an anaesthetist’s care will be assessed against the standard of other competent anaesthetists. Likewise, the standard of care given by a nurse would be assessed against the standards of a reasonable body of competent nurses, and thus would not be expected to perform to the standard of a consultant doctor.
- Causation – in order to establish liability for negligence, you must demonstrate that, as a direct result of the failure to provide the expected standard of care, you have suffered harm i.e. the negligence of another caused you to suffer harm.
The amount of compensation you can claim will be limited to the extent of your injuries and the losses which have resulted from your injuries. There are two types of damages which you are able to claim for.
- Special damages – seek to compensate you for the actual losses which you have incurred up to the date that the claim is settled, or up to the date of the court hearing. This category of damages will also take into account your future loss of earnings and future medical expenses which you may incur as a result of your injury. This includes (for example):
- Travel expenses to and from hospital, including car park charges at the hospital
- Loss of earnings, either because you have been unable to work, or you are earning less because your duties are restricted by your injury
- Damage to personal items such as clothing, mobile phones, glasses et
- Medical expenses incurred as a result of your injury (such as the expense of physiotherapy, occupational therapy, rehabilitation etc.)
- General damages – seek to compensate you for the pain and suffering you have experienced, and will experience, as a result of your injury. This includes both physical and emotional pain. This category of damages is more difficult to quantify (i.e. ‘put a price to’) because it involves attributing a financial value to your pain and suffering.
After we have discussed your case with you, we will send a letter before action to the Defendant and/or their solicitor. This letter will outline the basis upon which your claim is made, a summary of the facts of the case as you have explained to us and set out the remedy (i.e. the amount of compensation) which you are seeking.
The Defendant will then have three months to reply with a letter of response (or a letter of settlement if liability is accepted in full, as well as the amount of compensation claimed). Even if the Defendant does not agree to settle at this stage, it is important to note that the majority of cases settle before they reach the point of being heard in court. The Defendant may accept that they are partially responsible for your injury, or they may accept that they are fully responsible but dispute the amount which you are claiming. Our team of solicitors will take you through each step of this process.