Misdiagnosis Medical Negligence Claim
Medical Negligence FAQs
What is Medical Negligence?
Claims for Medical Negligence (sometimes called Clinical Negligence or Medical Malpractice) arise as a result of the negligence of medical professionals such as doctors, nurses, physiotherapists, dentists or hospitals. Essentially, this means when treatment from a medical professional falls below a reasonable standard of care (see further below).
How long have I got to make a Clinical Negligence claim?
There is a statutory limitation period of 3 years during which you should start legal action. This period runs either from the date of the negligence or from the date that you became aware of the injury that was caused by the negligence, whichever comes later. This later knowledge is known as the ‘date of knowledge’.
If you are not certain about the date of knowledge it is advisable to take the date of the negligence as the beginning of the 3 years limitation period.
At the discretion of the Court, the 3 year limitation period can be extended but this can be difficult to achieve.
How long do Clinical Negligence claims take?
This will depend upon the nature of the claim and whether an out of Court settlement can be reached. Most cases will take at least 12 - 18 months to resolve. If a claim goes as far as a trial then the claim may take 2- 3 years to resolve. Some cases will take longer than this.
How do I make a no win, no fee claim?
A solicitor will be able to advise you as to whether you may have a claim and if so can assist you with investigating this and considering whether to commence Court proceedings. You can start Court proceedings yourself as a Litigant in Person but most people find it easier to have assistance from a legal professional to bring a claim for Clinical Negligence. Our lawyers offer a free initial consultation to review whether they can assist with a claim.
Will I need to go to court?
Most cases for clinical negligence do not end up at a court trial. However, some do if the defendant does not accept negligence but the claimant’s lawyer still consider they have a good case. Nonetheless the majority of successful cases are settled out of court. If your matter were to go to a trial your lawyer at Brachers would support you fully through the process.
How do you prove clinical negligence?
To be successful in a claim for clinical negligence you must prove three essential elements:
Element 1: The Duty of Care
All doctors, nurses and other medical practitioners have a duty of care to carry out their work with reasonable care and skill when treating their patients. The first hurdle is to show a duty of care was owed. Where an injury has arisen out of either treatment or care being provided this is not usually difficult to establish.
Element 2: Breach of the Duty of Care
The second element is that there must have been a breach of that duty.
The test for proving breach of duty and establishing clinical negligence was set out in the case of Bolam v Friern Hospital Management Committee (1957):
A doctor is expected to exercise the skill of a competent doctor in his or her particular field, in accordance with a ‘reasonable body of medical professionals’ skilled in that particular area. A doctor would not be negligent if he has acted in accordance with a reasonable body of opinion which existed at the time, which can be logically supported.
In Bolitho v City and Hackney Health Authority (1997), the House of Lords held that the Judge can reject the expert opinion of a ‘reasonable body of medical professionals’ on the grounds that he/she does not accept the opinion, it is not reasonable or has no logical grounding.
Where there is a difference of opinion amongst clinicians as to how a patient should have been treated, a claimant may not be able establish that there has been a breach of the duty of care.
The standards of treatment vary considerably across the UK and it is therefore important to appreciate that although patients might be treated differently in different areas, this does not necessarily mean that they have been treated negligently.
It can therefore be difficult to establish that there has been a breach of the duty of care and that the clinician has acted negligently.
Element 3: The injury and Causation
If a claimant can prove that a duty of care was owed by the defendant and that the defendant was in breach of this duty, they must also show that as a result of the breach of duty they have suffered some harm.
In clinical negligence cases it can be difficult to establish causation because the injury could have occurred from another cause or would possibly have occurred in any event (i.e. for example where an illness or injury was not immediately diagnosed). It may therefore be difficult to show that “but for” the negligent act the claimant would not have suffered the harm or loss anyway.
Do I have a case?
Following an initial discussion with you we will be able to tell you whether your case warrants further investigation. However, it is unlikely that we will be able to say whether or not a medical professional has been negligent until further enquiries have been carried out (detailed below).
What is the process for a medical negligence claim?
In order to properly assess the prospects of success of your case, we will take initial instructions from you. It is likely we will also need to obtain copies of all your full medical records to include details of the treatment you have received. You will need to sign a form authorising the release of your notes to us.
Independent medical expert opinion
In order to establish whether or not the care that you received was negligent (in breach of duty), the courts will generally require an independent medical expert’s opinion. This opinion can often be provided based on a review of your medical records. A report on breach of duty will therefore often be required to establish whether you have a potential claim.
A further medical opinion (from the same expert or possibly an alternative expert in a different field of expertise depending on the type of injury suffered) will also be required dealing with the issue of causation (i.e. whether your treatment caused or contributed to your injury, or whether the harm you have suffered would have occurred in any event). Again, such a report will generally be required to assess your case.
Before we can instruct any medical experts, we will need to assess all of your relevant medical records.
It can take up to several months for a report to be completed, which means that the investigation process usually takes some time.
Having received expert medical opinion, we will carefully consider your case with you and the medical expert(s). This will help us to decide whether or not your case is likely to succeed on the balance of probability.
Letter of claim to the other side
If, having investigated the matter, we have decided that your claim has reasonable prospects, we must let the other side (the defendant) know about the claim and the allegations of negligence alleged.
The letter of claim gives the defendant the opportunity to investigate your claim and provide a letter of response. The defendant has four months to respond to this letter of claim and provide their response to the allegations of negligence put forward.
Commencing Court Proceedings
Once we have completed detailed investigations and we are of the view that your claim has reasonable prospects of success. Court proceedings could be commenced against the defendants. This may not be necessary if the defendant has already admitted liability in the letter of response.
Court proceedings will either be issued in the High Court (if your claim is worth at least £50,000) or in the County Court if your claim is worth less than this. If your claim for personal injury, pain, suffering and loss of amenity is valued at less than £1000 we would be unable to consider persuing the claim because we would not be entitled to recover our legal costs from the defendant. Whilst a claimant could offer to pay our fees personally, these would almost undoubtedly be in excess of any compensation recoverable and therefore any claim would be uneconomic to pursue.
Before court proceedings are started a report will generally be needed from an expert as to your injuries and what the future holds (called Condition & Prognosis). Generally an expert will have to assess you in person to provide such a report. This report will be served on the defendant when court proceedings are served. The process of serving court proceedings and what this entails will be explained if your case reaches that stage.
How much money will I get from a no win no fee claim?
The amount of compensation (called damages) that you may obtain will depend upon the injuries that you have been suffered and what the future is considered likely to hold.
A claimant’s entitlement to damages may include compensation for “General Damages” (i.e. pain, suffering and loss of amenity) as well as “Special Damages” (which include past and future financial losses i.e. lost earnings).
The amount of General Damages a claimant may receive will be based on the medical evidence in support of the claim. Any claim for special damages should be substantiated, where possible, with documentary evidence in support. It is very difficult to provide an estimate of the sum potentially recoverable until the medical evidence is complete.
Can I bring a claim on behalf of a child or a person under disability?
The rules are different for children and those who are incapable of managing their own affairs. A claim can be brought on their behalf by a litigation friend, who must act in their best interests.
The 3 year limitation period should not start to run until the person is no longer under a disability or the child’s 18th birthday.
How does a no win, no fee Agreement work?
Brachers are able to offer no win no fee agreements to clients for clinical negligence Claims. We call this agreement a Conditional Fee Agreement (CFA).
There are essentially two elements to consider when looking at how to find a claim for clinical negligence:
- Your lawyers’ fees – i.e. the cost of a solicitor
- ‘Disbursements’ – the other costs of bringing a claim such as fees for experts and Court fees.
A CFA covers your lawyer’s fees. It means that if you lose your claim you do not have to pay anything towards these fees. If you win, you have to pay a contribution towards your legal fees (called a success fee) from your damages. The amount of this success fee depends on the risks involved with your claim at the outset. However, the amount you pay cannot be more than 25% of your past losses and general damages (see above). Any compensation you obtain for future losses will not have any deductions made from it for a success fee.
Disbursements can usually be covered by way of a policy of insurance which is self-insuring meaning that if you lose, you do not have to pay anything towards this but if you win you will have to pay an insurance premium from your compensation. The amount of the premium is dependent on the amount of compensation you receive.
Your lawyer will explain the funding of your claim with your carefully but the key point is that you will not be charged anything if you lose your case (so long as you have complied with the terms and conditions of all agreements).
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