What is Medical Negligence?
By Mark Ainsdale. Last updated 14th July 2021. Welcome to our medical malpractice FAQs guide. Medical negligence or clinical negligence, as referred to in more recent times, is when a person receives treatment or care from a healthcare professional who can include but is not exclusive to; nurse, carer, doctor, pharmacist and such care has fallen below the standard expected. If this care or service provided has in some way caused the person to experience ill health as a direct result, then they may be able to pursue a claim for medical negligence.
What evidence is needed when pursuing a claim for medical negligence?
Two main areas within the law must be proven for a person to pursue a compensation claim for medical negligence.
To pursue a claim for medical negligence, it is not enough for the treatment to be of a poor standard. It must have in some way caused them harm or further ill health. It seems unfair that a person should not be made liable for delivering a health service below what is expected of them. When deciding to choose a career within the health service, people are made aware of the Code of Conduct that should always be abided by a particular standard of care.
Code of Conduct is there to ensure that all patients feel safe and secure and that they receive a high-quality health service. It goes further as it provides rules and safety measures for patients to compare their treatment with and offer patients the opportunity to challenge those they feel have not provided such a service. This is where medical malpractice cases could become a possibility.
Any medical negligence case that is being pursued must show a strong liability in as much as a health care professional has breached their Care of Duty, especially if the case concerns a wrongful death. It must be proven that another healthcare professional of the same ability, given similar circumstances, would not have acted in the same negligent way.
How long has a person got to pursue a claim for Medical Negligence?
This is one of the major medical malpractice FAQs for us to answer. There are quite strict rules regarding time limits concerning compensation claims, and that is, most cases have to be filed within three years of the incident happening. It is important to state that there are exceptions to the rule which are listed below but not inclusive to as a judge also has the right to allow cases to be heard at their discretion;
If a person is under the age of 18 at the time of the medical negligence, they have three years to pursue a compensation claim once they turn 18. Minors who experience medical negligence have until their 21st birthday to bring a medical negligence claim to court.
Those with mental health problems have three years to pursue a medical negligence compensation claim once they have been discharged from any mental health care they have been receiving.
If a person suffering from a mental health issue is unlikely to make a full recovery, then there is no time limit. They have a lifetime to pursue a claim for medical negligence.
Problems that may arise from receiving poor health treatment may not always be noticeable straight away. They may take time to surface, and for this reason, there is an additional exception to the rule allowing victims three years from the date of knowledge to pursue a claim.
Can Medical Negligence only happen at hospitals?
Medical negligence can take place in many different areas. It is not restricted to medical environments, although a health service must be being provided at the time. In short medical negligence or clinical negligence can take place almost anywhere a health care professional is providing a service including but not exclusive to; a patient’s home if a health care worker is providing a home visit, doctors surgery, hospital, dentist, chiropodist, care home, spa, private health clinics.
How long do Medical Negligence claim cases take?
A very important question but also quite a difficult question to answer. When people want to pursue a claim for medical negligence, it is often asked how long a medical negligence compensation claim is to conclude. Still, there is no straightforward answer as each claim is different to the next, although some might appear similar to the surrounding circumstances that lead to the incident, and the fallout may be quite different.
If a legal representative is pushed for an answer, they would say a medical negligence case would probably last about two years, those being the most straightforward cases. Cases that are complex or experience delays can last much longer, especially when no liability has been accepted.
How are Medical Negligence cases funded?
This is a common example of medical malpractice FAQs. Here, we fund 99% of all our medical negligence cases under a No Win No Fee agreement or a conditional agreement, as they are more commonly known. We have a high success rate due to the knowledge and expertise of all our expert solicitors. Our legal team has decades of experience dealing with all different types of medical negligence cases. We have an expert team dedicated to dealing with our most complex cases. No Win No Fee agreements have changed slightly since they were originally introduced.
Changes took place to No Win No Fee agreements in April 2013 after much persistence from insurance companies regarding the huge sums of money being paid out in compensation claims. Before such changes took place, a No Win No Fee meant a claimant would paying nothing in legal fee regardless if the claim was successful or not. After the changes, claimants now have to pay their legal team their success fee of up to 25% of the awarded compensation.
What are the different types of Medical Negligence?
There are many different types of Medical Negligence cases and clinical negligence cases as it is such a broad term. Medical neglect can happen due to any medical or health care provided, which is of a poor and substandard level. The most common are listed below;
Hospital Negligence – when a hospital’s service or treatment is provided as an outpatient or an admitted patient is not conducted correctly and causes further ill health. The hospital is liable for hospital negligence.
Birth Injury – this is when the correct and proper procedures are not followed during the birth of a child, and as a consequence, the mother or child or both are affected as a result. Birth injury negligence can have devastating effects on all concerned and can be prevented by proper due care and attention being provided at all times.
Surgery Negligence – this can take place in numerous different ways; for example, surgery can be performed on the wrong part of the body, wrong limbs can be amputated, surgical instruments can be retained inside a patient’s body, all of which are unthinkable and have catastrophic consequences for the patient.
Dental Negligence – this can arise when a dentist extracts the wrong tooth from a patient, gum disease or infection goes undetected, or just general poor dentistry, which has a knock-on effect on a patient’s teeth and gum area.
GP Negligence – GP’s are a person’s first point of call when they are not feeling well or have a health complaint and are there to help diagnose a person’s ailment and treat it or refer them to a physician who can. If the GP fails to diagnose an illness correctly or provides the incorrect course of treatment, or does not refer the patient promptly and appropriately, and the patient worsens, they commit GP negligence.
Care Home Negligence – More and more cases are reported concerning poor treatment being provided in care homes. Occupants of old people’s homes or care homes receive poor, inadequate treatment, often with illnesses and falls going unnoticed and not reported. People in care homes are often vulnerable and need caring for but are being neglected and handled incorrectly.
How much compensation is awarded in Medical Negligence cases i.e. Medical Negligence payouts?
There’s no straightforward way to answer this example of medical malpractice FAQs. That’s because there are many different types of medical negligence cases, all of which are unique as the circumstances surrounding medical neglect are different from each case, as is the aftermath of the negligence. We recommend that the case be looked at by one of our professional solicitors who specialise in medical negligence and then a medical expert before a precise amount is given as there is no way of giving an accurate amount in the initial stages of any case. Medical negligence compensation pay-outs are calculated using two specific areas;
Special Damages – these cover out of pocket expenses so to speak. The idea of compensation is to put a person back to their original position or as close to before their non-fault accident. That’s why the court awards special damages so that any expenses the victim of the negligence has incurred can be recuperated this way. The courts will calculate the special damages from the date the incident took place, taking into account any expenses incurred in the future. Special damages will cover medical costs, any loss of earnings, change or adaptation of accommodation, any additional care needed, travel and parking expenses, specialist treatment and equipment and any other services or equipment needed to accommodate the victim.
General Damages – the court awards these damages for the pain and suffering of the medical negligence victim. Depending on the type and severity of the injury will have a huge bearing on the amount of compensation awarded. The more the victim has suffered, the more the court will award in general damages. The court will also consider how their life has been altered due to the negligence and how it will continue to be affected, all of which will be included in the amount awarded for general damages. For the court to give a precise amount of compensation to cover the general damages, they will seek professional medical advice, a physician who is fully competent in assessing the damage that has been done to a person’s physical and mental health as a direct consequence of the medical neglect. Some calculations of special and general damages are below.
|Type of Harm
|Multiple Serious Illness or Injuries Plus Special Damages
|Multiple illnesses and injuries with special damages such as a loss of earnings.
|Up to £250,000+
|Female Reproductive System
|Injury or disease that results in infertility. May have been caused to due to the failure to diagnose an ectopic pregnancy.
|£114,900 to £170,280
|Female Reproductive System
|Sexual dysfunction in someone who has children. Upper end of this bracket is applicable to cases with serious medical complications.
|Male Reproductive System
|The reproductive organs are totally lost.
|In excess of £153,870
|The natural function of the bowel has been completely lost. Depending on the person's age they may require a colostomy.
|Up to £150,110
|Lung cancer in an older person that causes the lungs function to be impaired and the person to experience severe pain.
|£70,030 to £97,330
|One kidney is lost but the other suffers no harm.
|£30,770 to £44,880
|Breathing difficulties due to chronic asthma. The person may need to use an inhaler occasionally, and there will be an uncertain prognosis.
|£26,290 to £43,010
|The spleen is completely lost. This causes a risk of internal infections due to the immune system being damaged.
|£20,800 to £26,290
Why choose a Medical Negligence Solicitor?
Medical negligence is a complex and challenging subject. It’s a combination of two complicated entities medicine and law. Although a person can represent themselves when pursuing a case for medical negligence, many professionals would strongly advise against it, especially if they are not familiar with the subject. It is easy to get lost in such a convoluted subject matter. Even to professionals in the area of medical negligence, complex and trying cases can be ambitious, to say the least.
Medical negligence cases can also be quite lengthy, taking a considerable amount of manpower in gathering all the relevant information, statements and piecing together the whole case. That is why we are here to help.
Appointing us as your legal representative will take away all the stress, anxiety, and worry you may be feeling when pursuing a medical negligence case. Once we have taken your statement, we need little input from you as we take care of everything else, keeping you updated on any new gatherings or information we discover.
Is Medical Negligence increasing?
The most recent published statistics concerning medical negligence would strongly suggest that medical negligence is, in fact, increasing. Shocking figures published by the BBC in July of this year have revealed that a huge £1.1 billion was paid to the solicitors and patients of those who have been affected by medical negligence. Astounding the bill to cover medical negligence costs and fallouts is set to rise even further during 2015/2016 to a massive £1.4 billion.
It has been clearly stated that measures and procedures need to be put into place to reduce the amount of medical neglect and learn from mistakes of the past. People need a health system that they can trust to feel safe approaching in times of ill health and injury. No one should feel apprehensive and worry that the medical treatment they receive may be of a poor standard and cause them more problems. It is being claimed that medical negligence is putting increasing pressure on health services but should not argue that such poor services are failing people.
Will a patient’s treatment be affected when claiming Medical Negligence?
Now we come to a particularly intriguing question amongst our medical malpractice FAQs. In any incidents of medical negligence where a patient has received poor treatment and care resulting in them suffering further ill health as a direct consequence, can rest assured that they will not face any hostility if more treatment or continued treatment is required. The victim of medical negligence is entirely blameless. No person would ever want to be put in such a situation and therefore should not face any discrimination as a consequence.
Most people pursue a medical negligence case as they have no other choice. It is a way of being provided with ways and means of getting themselves in a position that they were in before the incident took place. For some who are severely affected by medical malpractice, who are subjected to life-changing circumstances, compensation and any special requirements covered through compensation are needed for them to continue with a comfortable life.
When is the organisation aware that a Medical Negligence claim is being pursued?
The doctor, hospital or other health organisation will be made aware that they are being sued when a clients medical records are requested. They may even become conscious that a case for medical negligence may be pursued if the patient in question has already put in a complaint. Some law firms require potential clients to first make a complaint to the organisation in question to see what kind of response is given. It allows the law firm to gather whether the organisation in question is likely or even does admit responsibility. The type of response that is given can give a large indication of how to manage the case. Regardless of whether the organisation admits responsibility, you can still pursue a claim for medical negligence as long as your case warrants good merits.
Is it better to pursue a claim for Medical Negligence sooner rather than later?
Deciding whether to pursue a claim for medical negligence may be the toughest part. Still, once a decision has been made, if that decision is to move forward and make a compensation claim, much of it will be handle by the law firm you appoint to represent you. If deciding to make a claim, it is always advised to do so as soon as possible, while information regarding the medical neglect is still fresh not only within your own mind but those that may need to be called as witnesses.
Over time important information may be forgotten, information that may be the piece to having a successful outcome and receiving justice for the negligence that has occurred. Medical records over time may get lost and are usually the key evidence needed in any medical negligence case. If the claim is brought early, they are likely to be easy to locate and use in the case. Furthermore, people who were present at the time of the incident may need to be called witnesses. Still, as some people tend to move around, it may be not easy to contact them if a long period of time is left between the incident and pursuing a claim.
When claiming medical negligence, it is important to remember that it is better to do so sooner rather than later, not just because of the three-year time limit. Still, so all information is reachable and valid. Please continue reading our medical malpractice FAQs guide for further information.
What information is needed when pursuing a claim for Medical Negligence?
The first piece of information a medical negligence law firm will need even before they agree to take a case on is a statement from the victim of the negligence or a close friend or relative if they cannot do so themselves. This allows the lawyer to look into the case initially to evaluate the case and see if medical negligence has taken place. The solicitor needs to investigate whether the case is likely to have a successful outcome before any paperwork is signed especially if the case is being pursued under a No Win No Fee. They will not have any costs paid if the case is lost.
The statement will require detailed information of events that may have led to the medical neglect and information regarding the actual medical negligence itself. This allows the lawyer to derive a full picture before they may even seek medical advice to decide whether negligence actually took place.
If the law firm agrees to take the case, they will require the client’s medical records, and these will be vital in proving the negligence as they will hopefully offer written confirmation. The solicitor who is in charge of your case may want not only your files to be viewed by a medical expert but also yourself so that you can be examined and an expert opinion on your case can be produced. The medical expert’s report is vital in proving medical negligence. If they do not believe medical neglect has taken place, your case will not stand up in court.
It is also important for the law firm who is in charge of your case to obtain any statements from any witnesses that were present at the time of the negligence or to the lead up of the negligence as it will help to build a bigger picture of the treatment and service that was provided. Also, as witnesses are usually not biased, their statement is independent and valid when it comes to evidence. Witness’s statements can weigh heavy in a medical negligence case.
Initial investigations such as obtaining medical records, any diagnostics test results, medical examination reports and witness statements can be very timing consuming but make up the bulk of the information required in a medical negligence case and are very vital to the whole case.
Do all Medical Negligence cases go to court?
Many people are deterred from making a medical negligence claim due to the fear and anxiety that they may have to go to court. Only a small amount of cases are actually heard in court. It’s usually those of a complex nature. When liability cannot be reached, most cases are finalised outside court when both sides can agree and when liability has been established. If the case does go to court, we are here for you every step of the way. We will ensure that you are well prepared and guided through the whole process.
Who is sued in a Medical Negligence compensation case?
Who a victim of medical negligence will sue largely depends on where the negligence took place. If a person receives inadequate treatment at an NHS-led hospital and suffers ill effects as a direct consequence, they will sue the NHS Trust responsible for the negligence rather than the actual health care professional who is to blame for the medical neglect.
However, if a patient is a victim of medical negligence due to the poor treatment they received from their GP or private clinic, they will sue the actual health care professional rather than the whole practice or clinic. It is important to remember that health care professionals such as GP’s will have insurance that will cover incidents of medical negligence and therefore will not have to pay for such damages out of their own pocket.
The same rule applies to dentist’s who are responsible for committing medical negligence. It will be themselves who will be sued rather than the dentist practice, but they have insurance that will cover such incidents, as mentioned before. Each case is different to the next, and there are exceptions to what is mentioned above. Not all cases are straightforward many cases of medical negligence complex. It may be difficult to determine who to sue in the initial stages.
What is the Medical Negligence claims process?
Perhaps this is the most important of all of the medical malpractice FAQs. Pursuing a claim for medical negligence has different stages. The first stage is the initial investigations, which will cover gaining vital information regarding your case. In the initial investigations, the solicitor you have appointed to represent your case will ask you for a full statement and who you think is responsible for the negligence you have been subjected to.
The solicitor will also want to obtain any other witness statements from witnesses present at the time of the negligent care. The solicitor will want to obtain any medical records for the victim and also independent medical expert opinions for the person in question so that they could be used to back up the claims made.
The medical report will hopefully determine that there has been a breach of duty. The medical professional has not followed the correct procedures and has provided a service below the expected standard. Sometimes, one professional medical report is only needed to provide sufficient evidence to prove a breach of duty, but more than one is needed on most occasions.
The next stage of the medical negligence compensation process is preparing your case and evaluating the merits of your claim. Your solicitor will consider the opinions of the medical experts to evaluate how badly you have and may go on to suffer as a direct consequence of the negligence. They will look at the extent of the injury or illness caused by medical neglect and how it has and may continue to affect your life.
At this point, the solicitor may be looking at how much you are likely to receive in terms of compensation for the negligence you have suffered; they will be taking into consideration both general damages, i.e. pain and suffering that has been caused and also special damages, i.e. the financial losses your may have incurred and may go onto incur in the future. General damages are put in place to compensate the victim of medical negligence in terms of funds awarded to cover the amount of pain and suffering a person has endured as a direct consequence of the poor standard of service and care provided.
Technically the more suffering a person has had to go through will determine how much compensation they will receive. Special damages cover the financial aspect of the compensation claim in terms of out of pockets expenses also any medical care, equipment, accommodation adaptation, medication etc., that is needed.
The final stage of the medical negligence compensation process is the actual issuing of proceedings and pursuing the case. The defendant in the case will receive notice of the case and the allegations against them. The defendant will be informed of the case being pursued and any evidence that backs up the claimant’s case. The defendant will then have four months to investigate the case themselves and respond to the allegations.
When the defendant responds, they will state whether or not they accept liability. It is important to say that they can accept partial responsibility if they believe the claimant had some part to play in the negligence caused. At this stage, both sides may be able to sort out an agreement so that the case does not have to go to court. If this is not possible, Court Proceedings will be issued.
What will happen to the person(s) responsible for the negligence?
This question is slightly difficult to answer as each case is different and depends on who is being sued and the type of negligence. It can also depend on the nature and severity of the negligence. When a person pursues a claim for medical negligence, it is completely separate from any hospital or clinic action.
The consequences that any health care professional faces are entirely up to the organisation they work for unless they have gone so far as to break any laws and face criminal charges. If the negligence is considered mild or moderate, then it is unlikely that the person responsible for the medical neglect will face repercussions. If the negligence is of a severe nature, then the hospital, GP’s surgery, clinic etc., may launch their own investigation and act on the findings.
It is unlikely that a doctor or health care professional would be dismissed especially if the negligence was of a mild nature and they have good character; however, nothing is set in stone, and each case is different to the next, so it isn’t easy to say. If the negligence in question is severe and an investigation is launched and finds that the medical professional is in breach of their duty, they are likely to face the consequences.
Do those pursuing a Medical Negligence case pay upfront costs?
Depending on the type of agreement will depend on the costs involved. As we offer 99% of our clients a No Win No Fee agreement, we do not need any upfront costs. If the case does not succeed, we do not ask for any money from our client. It is only if the claimant has a successful outcome that we take up to 25%, but no more compensation covering certain fees.
Medical Malpractice FAQs
What happens when a compensation claim goes to court?
At this point, a court trial weighs up the evidence of both sides, with the judge making a final ruling.
How long do compensation claims take to settle?
The claims process could last between 12-18 months, if not longer, depending on the evidence.
How long will it take for me to receive compensation?
You should receive your compensation settlement within 14-28 days once there is a settlement.
Should you accept the first offer of compensation?
We recommend that you avoid doing this because you’re highly likely to receive a stronger offer later on.
What questions will a personal injury solicitor ask me?
The solicitor will ask about the circumstances of the accident, any eyewitnesses, any photographic/video evidence and any accident reports.
Do all personal injury claims go to court?
Far from it. In fact, the vast majority of claims tend to reach an out-of-court settlement.
Is it better to settle or go to court?
It’s certainly cheaper to avoid going to court, though you may receive more compensation if you have a trial.
What happens if I reject a settlement offer?
You can’t accept that offer at a later date, though you’re likely to receive another offer.
Thank you for reading our medical malpractice FAQs guide.