If you have been injured because of medical negligence, or your medical condition has worsened because of negligence by a healthcare professional, you could consider making a claim for compensation. But how do you prove medical negligence? In the sections below, we’ll take you through all you need to know about how to get proof of medical negligence, why you might want a solicitor to help you make a medical negligence claim, what sort of compensation you could claim and more. Whether you’re looking into how to prove medical negligence for a family member, or how to prove medical malpractice in your own care, this guide aims to answer all the questions you might have. If you still have any questions after reading through, or you’d like some assistance with finding a personal injury lawyer to help you, you could simply call the number at the bottom of this page.
Select A Section
- A Guide On What Proof Of Medical Negligence You Need To Claim Compensation
- What Is Clinical Negligence And How Could It Harm You?
- Causation And The But For Test
- Medical Practitioners Duty Of Care
- Proving Negligence By A Medical Professional
- Types Of Evidence To Prove Medical Negligence
- When May A Medical Negligence Claim Go To Court?
- Time Limits To Claim Compensation When You Have Proven Medical Negligence Took Place
- I Have Proof Of Medical Negligence, What Damages Could I Claim For?
- No Win No Fee Claims For Negligent Medical Care
- How Medical Negligence Assist Could Help You Prove Medical Negligence
- Resources For Medical Negligence Claimants
Whether you have suffered negligence by a dentist or a hospital doctor, a midwife or a surgeon you would need proof of medical negligence in order to make a claim for compensation. But what proof of medical negligence would you need? Below, we walk you through all the steps needed to gather evidence to prove medical negligence. We’ll also explain what you need to know about time limits for claiming, and what sorts of damages you could look at claiming. We’ll explain duty of care, and why this matters in medical negligence cases, as well as causation.
As well as this, we will talk about getting legal assistance with claims of this nature, as it could be easier for a lawyer to help you prove medical malpractice, as they would have experience of making this type of claim. Why not read on to find out more about the proof of medical negligence you might need to start your claim.
Clinical negligence is, in essence, the negligent action or inaction of a medical professional that causes you harm. In the sections below, we describe a doctor’s duty of care towards you, and how a breach of that care could lead to you suffering harm. If this is the case, and you have proof of medical negligence, then you could file a claim for compensation. In this section, we look at what can be classed as medical negligence, and what damage it could do.
Medical negligence does not mean someone has purposefully caused you harm. It could happen in a number of different ways, including:
Omission – If some treatment you needed was not provided by your doctor
Mistake – If the wrong medicine was prescribed to you for example
Oversight – This could be failing to spot a broken bone on an X-ray, or failing to correctly interpret blood test results
If you wish to prove medical negligence and are not sure how to start, then you could retain the services of a legal professional to help make a claim for you. We could help connect you with a reputable solicitor to take on your case.
When looking at medical negligence claims, and how to prove medical negligence, we should explain causation and the but-for test.
This is one of the three parts that make a medical malpractice/negligence claim. How to win a medical malpractice claim hinges on three things:
- Proving that there was a duty of care from the medical professional to the patient
- Proving that there was a breach in that duty
- Proving this caused harm to the patient (This is where causation must be proven)
The But For Test
There was a test established in order to prove medical negligence causation. The court should ask ‘But for the act/inaction of the defending party, would the patient have suffered harm’
Sometimes, this could be difficult to prove, and there may be other factors that come into play. We take a look at these below:
Existing condition – If the patient had an existing condition which they were undergoing treatment/examination for, it might be difficult to differentiate between the effects of such a condition and new issues stemming from negligence.
Statistics – There are often, due to rapid advances in new treatments and research different views on matters. In addition to this, if a person relies on statistics to form an opinion, this could provide information on an average person, but every person could differ in terms of responding to treatment etc.
Would they have acted differently – It could be hard also to predict what would have happened should a medical professional have acted differently. One example of this could be if someone presented with nausea and vomiting and was sent home to rest with no further testing, later passing away from fatal poisoning. Even if the doctor had not sent the patient home, they would have succumbed to their condition and passed away. Therefore, the negligence may not be deemed to have ‘caused’ the death.
Multiple causes – if there is more than one factor that could act as a cause for the patient’s condition, this could make it difficult to prove medical malpractice.
In cases of medical malpractice, burden of proof is on the claimant and the claimant’s solicitor, which is why it is often wise to select your solicitor with care.
According to the GMC (General Medical Council), a patient must be in a position to trust a doctor with their health and with their life. In order to justify the trust, respect for life must be shown by doctors, and their practices should meet the standards set across 4 domains. These can be broken down as follows:
Quality and Safety
- If patient comfort, dignity or safety is compromised, a doctor must take action promptly
- A doctor should promote and protect the patient and public health
Skills, Performance and Knowledge
- The patient’s care should be the first concern of any medical professional
- The standard of care and practice should be good
- Skills and professional knowledge should be regularly updated
- A doctor should be able to judge their own competence limits, and not work outside of those limits.
Teamwork, Communication and Partnership
- Patients should be treated with dignity
- Patients should be treated as individuals
- Patients’ rights to confidentiality should be respected
- Medical professionals should consider themselves as working in partnership with their patients
- Patients should be treated with consideration and politeness
- Medical professionals should listen to patients, and respond to any concerns or preferences
- Medical professionals should furnish patients with information that they need or want in a clear manner so the information can be understood
- Patients’ rights should be respected in terms of reaching decisions with a medical professional regarding their care and treatment
- Medical professionals should support patients’ self-care to maintain or improve their health
- Medical professionals should work together with colleagues so that the patients’ interests are best served
Maintenance of Trust
- Act always with integrity and be honest
- Do not unfairly discriminate against colleagues or patients
- Do not abuse the trust of patients or the public in the profession
It also advises that a medical professional should be able to justify their actions and their decisions, and reminds medical professionals that they are accountable for their professional practice/s.
If a medical professional fails in their duty of care to you, then you could consider, if you can prove medical negligence, making a claim against them.
Proving medical negligence in the UK could be made easier with the assistance of a personal injury lawyer specialising in medical negligence. You would need to provide proof that:
- The medical professional in question had some duty of care to you as their patient
- The medical professional in question did not live up to this duty of care
- This failure in duty of care led to harm to you
- If the medical professional had not failed in their duty, you could have avoided the harm
Proving medical negligence could be tricky. If you have an experienced solicitor on your side, this could make claiming less stressful as your solicitor could take your case to the liable party, instead of you having to do so.
If you want to prove clinical negligence, you may need certain documents. In general terms, some of the proof of medical negligence you might need are as follows.
Obtaining Your Medical Records
You should be able, by law, to request a copy of your existing medical records. The legalities behind this could be found in 2018’s Data Protection Act, and EU Regulation 2016/679. If you request this, in writing, you should receive it without charge and within the space of a month. There is a duty for your records to be completed honestly, which is why they could be considered a reliable form of evidence of your medical condition. As they should be filled in real-time (as treatment happens) they could provide useful evidence in cases where negligence is only discovered afterwards.
Get Statements From Any Witnesses
Whether the statements are taken from yourself, your family or friends who witnessed either the negligence that occurred or its after-effects a witness statement could serve as proof of medical negligence.
These statements provide a person’s recollection of what has happened in terms of you receiving negligent treatment or being affected by negligent treatment. If you are required to give a statement, this could give you an opportunity to reveal the effects that the negligence has had on your day to day life, both emotionally and physically. If it is a friend or family member that is making a statement, they could corroborate your statement of what has happened, and they may also be able to confirm whether you are suffering any difficulties after the event. If a medical professional is making a statement, this could be from an independent expert who offered or provided treatment after the negligence had taken place. They could mention the condition you were in when they examined you, and what treatment you had to undergo to fix the issues, if they were able to be fixed.
Being Examined By A Medical Expert We Work With
Aside from this, you would be required to visit an independent medical expert for a full and thorough medical report to be submitted as proof of medical negligence. If a liable party did not accept responsibility, then it would be up to the claimant to prove that medical negligence took place, and the independent examination and subsequent report that was completed by an independent expert could assist with this.
If you are worried that you may have to travel a long way to see an expert, you might be relieved to know that we work with a panel of medical experts that could be local to you. If you’re wondering where your nearest medical expert is, we could help with this if you’d like to give us a call.
Medical negligence settlements are meant to go as far as they can to put the claimant in a position they would have been in if the negligence hadn’t occurred. This is why, as well as compensation for the suffering and the pain of negligence, financial losses could be sort. This could be wage loss, travel expenses, medical expenses and more. To prove these costs, you might have to provide bank statements, payslips, and receipts.
If you have proof of medical negligence, and you want to make a medical negligence claim, then you might assume the claim would require you to attend court. This may not be the case, as, if you could prove medical negligence and the proof is solid, the NHS or the private practice could settle out of the courtroom with you.
However, if you have sufficient evidence to prove medical negligence and the liable party disputes this, a personal injury lawyer could fight the case in the court for you. The types of cases that could go to court could include:
- Care home negligence
- Birth negligence
- A&E Negligence
- Surgical negligence
- Dental negligence
- GP negligence
- Hospital negligence
- Midwife negligence
If you have proof of medical malpractice, then you might want to make sure that you are within the relevant time period for claiming. A personal injury claims time limit exists for medical negligence claims, and this could be three years in most cases, but there are some exceptions. Below, we take a look at some situations you could find yourself in, and the relevant time limits for each of them. Please note, when we mention the discovery date, this relates to the date on which you became aware that the negligence caused avoidable harm. This might not be the same as the date the negligence itself occurred.
|Who is claiming?||Situation||Limitation period||Begins from|
|Yourself||Immediately realised avoidable harm||3 years||Negligence act date|
|Yourself||Discovered avoidable harm after time had passed||3 years||Discovery date|
|Yourself (for incidents when you were a child)||No one has claimed on your behalf||3 years||18th birthday|
If there are any questions still remaining about time limits for hospital negligence cases, do not worry. You can call us at any time, and we would be happy to advise you.
If you have proof of medical negligence, you might want to know what damages you could claim for hospital negligence cases. There are two types that typically make up a settlement, and these are:
Damages (General) – These are for the physical and mental effects of the medical negligence you have suffered. If you have proof of malpractice, as explained in the sections above, you could claim for both mental and physical suffering as general damages.
Damages (Special) – These are for financial burdens you’ve had to suffer because of the negligence, whether it is NHS negligence or private practice negligence. It would be sensible for you to keep copies of relevant financial documents and receipts as well as the proof of medical negligence you have because you could claim for things such as any loss of income and medical bills. You could also claim for travel costs and adaptations you may have needed to your home if you have suffered injuries that mean you need mobility aids and such.
If you’re looking to make a claim, you could be under the misconception that you would need to pay your chosen medical negligence lawyer upfront. However, this is not the case with what is known as no win no fee medical negligence claims. As long as your medical negligence solicitor works to this payment structure, you could begin a claim as soon as the Conditional Fee Agreement is signed. The CFA is an agreement between you and your personal injury solicitor. It sets out a percentage of your settlement that would be taken to pay the personal injury lawyer in the event that your medical negligence claim is successful. This percentage cannot be more than 25 per cent of your compensation. If your personal injury claim is not successful, then you would not be required to pay the legal fees. However, this reduced financial risk is not the only benefit of claiming on a no win no fee basis. Your solicitor would not be likely to want to risk spending their time on a case that would not pay out compensation, so you could be sure that they would refuse to take any case that they didn’t feel was strong enough. In addition to this, they would be working as much as possible to get you the compensation you deserve. After all, their earning potential is affected by how much you’d receive.
If you would like to speak to us about whether your claim is strong enough to consider making a case for compensation, or you want to talk about what other evidence to prove medical negligence you might need, then we would be only too happy to help. Call us when it is convenient for you, on 0800 652 3087, and we’ll be glad to talk you through anything you need to know about medical malpractice law. We can even connect you with a lawyer who could assist with your claim.
Here, we take a look at some of the resources you might find useful when looking further into making medical negligence claims.
Duty Of Care – Here, you can see what the GMC says about duty of care.
NHS Negligence Statistics – You could take a look at medical negligence statistics here.
Making A Complaint – NHS complaint procedures could be found here.
Misdiagnosis Claimants – More information for those claiming for misdiagnosis.
Claiming For Hospital Negligence – If you’re considering a claim for hospital negligence then this link could provide assistance.
Calculate Your Claim – This talks you through the workings of a personal injury claims calculator.
Written by Jo.
Edited by Charlotte.