What is medical negligence?
If you receive medical advice or treatment in the UK, you have the right to expect that this will be done to certain standards. In legal terms you are owed a ‘duty of care’ by the person who gave the advice or carried out the procedure. Their duty towards you is to meet a standard of conduct to protect you against ‘reasonable risk of harm’.
If they don’t meet this standard, and as a result of this failing their actions cause significant harm to you, then you, or your next of kin, may have a medical negligence claim.
Medical negligence is not defined in an Act of Parliament, but is what is known as common law, which means the law has been defined and amended by case law over the years and continues to develop, particularly with new procedures and medical knowledge.
Where does medical negligence apply?
Medical negligence, also sometimes known as clinical negligence, doesn’t just apply to care in NHS hospitals or in a doctor’s surgery – it may also cover healthcare settings such as a clinic during cosmetic procedures; a care home; the dentist; a pharmacy; an ambulance; even your own home or on the street.
For example – medical negligence may have occurred when:
- a student with meningitis is misdiagnosed by their GP so they are sent home to bed rather than being hospitalised and they subsequently die. Their next of kin would probably have a claim in medical negligence against the doctor.
- during labour the umbilical cord becomes wrapped around the baby’s neck. The correct procedure is not used quickly enough and the baby is deprived of oxygen and severely brain damaged. The parents could make a claim on behalf of their baby.
- a dermatologist treating a man with a history of serious depression for his severe acne prescribes Roaccutane. It is well-known that one of the potential side effects of Roaccutane is that it can cause suicidal tendencies. The man becomes suicidal and takes an overdose which does not kill him but causes liver problems for the rest of his life and he subsequently needs a liver transplant. He may have a claim against the dermatologist.
- a woman has breast implants in a private clinic. Over the years after the implants she gets burning pains and the breasts harden, become lumpy and look unsightly causing her to become stressed and anxious. She has to pay to get them removed. It turns out that the implants were made with silicone that is not medical grade. She may have a claim against the clinic.
This doesn’t mean that every time something goes wrong in hospital or after an operation or other procedure that it is necessarily a case of medical negligence. There are very particular conditions that must be met to prove medical negligence.
Does my case qualify as medical negligence?
There are difficult tests to pass if you want to make a claim for medical negligence.
First of all, to meet the particular standard of care required in medical negligence, the person giving you the treatment must be qualified to give it, or must claim to be qualified to give it. In rare cases people have pretended to be qualified doctors and have performed surgery – their patients had the right to expect them to perform that to the same standard as a qualified doctor.
Next, the person with the duty of care must have failed in that duty. This can be very difficult to prove. Medicine is not always an exact science – sometimes things don’t go as expected even where the same treatment has been successful in the past with another patient. There is always a risk with any treatment. Proving that the duty of care was breached by the professional means demonstrating that there was a serious error in the treatment or diagnosis that a competent doctor/professional would not have made in the same circumstances.
The professional’s treatment, or lack of it, must have caused the patient serious harm, or have contributed to that harm. If a mistake is made but no harm is proven or if it is put right before any harm is done, then the patient has no claim.
Who can claim?
Usually if you were the person who has suffered harm because of the medical negligence, then you will be the one to claim. However, if the person who has suffered harm is a child, or has been brain damaged or harmed so that they cannot take the case themselves, then their next of kin may make the claim. Similarly if the patient has died, then their next of kin may make a claim – or their estate.
How do you make a claim for medical negligence?
If you believe you may have a claim for medical negligence, there is a time limit for making the claim under the Limitation Act 1980. You must make a claim within three years from the incident you claim caused you harm, or from the date when you became aware that harm you have suffered is the result of medical negligence. If the injury happened to a child, they have three years from their 18th birthday to claim. Be aware that this time limit is three years to issue proceedings – ie submit the legal documentation to make your claim. You must take legal advice long before this date as medical negligence cases are generally complex and require a lot of preparation before a claim can be made.
What are the potential risks of claiming?
A good legal advisor will make sure you understand all the potential risks before you decide to make a claim.
Funding– You need to think carefully about how to fund your claim. The claims process is typically long and expensive. You may have your own insurance that would cover a claim, in which case you would have to use a lawyer from your insurer’s recommended list.
Different law firms will offer different methods of funding. ‘No win no fee’ is offered by many, meaning that if you win compensation the firm will take a percentage. However some may still demand a considerable sum up front for preparation of the case. It is important to check very carefully what will be required from you, and also what percentage might be demanded in the event that you win. A good legal advisor will set out in detail all the financial implications of taking a claim and will not pressure or rush you into making a decision.
Stress– Any legal action can be stressful and time-consuming. A medical negligence claim will require you to revisit what happened to you and the resulting harm that has been caused to you – both physical and mental.
Risk of failure– It is rare that you will have a guaranteed case with a certainty of success. You may take the financial, emotional and mental strain of taking a case only to lose it. It is important to think, and talk, this through with family and friends as well as your legal advisor before deciding to proceed.
What does ‘winning’ mean in medical negligence cases?
The majority of medical negligence claims are settled out of court for a variety of reasons. However, this often happens at the 11th hour and still results in a long and draining process for the claimant.
If you take a case to court and you are successful, or if the case is settled in your favour out of court, this will result in a compensation payment to you. This may cover any loss you have successfully proved, and could include:
- pain and suffering
- loss of earnings
- psychological distress
- loss of enjoyment if you can no longer enjoy things you did before (hobbies, sports, etc)
- cost of adapting your home and/or buying equipment you need
- cost of continuing treatment
Bear in mind that the court has no power to discipline the person who caused the injury, or fine the hospital or make sure procedures are changed. This remains the responsibility of the hospital or clinic involved.
If your treatment was under the NHS then there is an internal complaints system that may give you some of the answers you seek and may result in a compensation payment.
You should seek legal advice as soon as possible so that you can decide whether this is the best way forward for you, rather than taking a legal claim.