Medical Negligence

Negligence is the breach of a legal duty of care owed to one person by another which results in damage being accused to that person. Clinical negligence ( often called medical negligence) is concerned with claims against doctors and other healthcare professionals and their employers. In order to succeed in a claim for negligence the claimant needs to prove that:

The doctor or other healthcare professionals owed a duty to care of the claimant and not cause injury ;

There was a breach of that duty to take care;

The breach of duty has caused harm to the claimant; and

Damage or other losses have resulted from that harm.

If you have suffered an injury as a result of medical treatment, this may be referred to as a "patient safety incident". This does not mean that the treatment was necessarily 'negligent'. Whilst better quality of care ir safety measures could have prevented your injury, it may be that the incident itself could not have been avoided. The law only provides for you to recover compensation if it can be shown 'on the balance probability' that your treatment was carried out negligently and that this directly caused your injury. In legal jargon these tests are called 'liability' and 'causation'. They are difficult criteria to fulfil and require expert opinion from relevant health professionals to establish whether your claim will succeed.

Limitation (Time Limits)

You must commence your legal claim within three years from when the incident occurred or when you first realised you had suffered an injury. It is advisable to take specialist advice as soon as possible. Do not leave it to within a year of limitation applying if at all possible.

In case of children the three year limit does not apply until their eighteen birthday, in other words they have until they are twenty-one before commencing a legal claim.

How do I prove that I have grounds for legal claim?

Clinical negligence claims are often complex cases for you to be successful in your legal claim there are two strands of the case, negligence and causation, and you must succeed in both:

-Negligence: that the care you received fell below medically acceptable standards (note: care which is less than best practise may still be 'acceptable 'in the legal definition and not 'negligence') and

- Causation: The breach of duty or negligence of the clinician directly resulted in an injury to you.

In addition to proving that the doctor has failed to come up to the relevant standard of care, the claimant also has to established that this failure either directly caused the injuries alleged or significantly contributes to them. This element of the claim is very often difficult to demonstrate; it may be easy to prove that the doctor did something wrong bur this failure cannot be shown to have caused the patient's injuries.

As stated you must succeed on both, it is not enough that you succeed in proving that someone did something wrong when treating you, you must also prove you suffered an injury as a result of that incident.

As part of the initial investigations, your solicitor will require a supportive opinion from an independent medical expert on your case. Their will base your opinion on:

Your medical report

Your statement about what has happened to you

Any other documents supporting your case

If your solicitor can not obtain a supportive report from and independent expert, then your case will not succeed.

Following an assessment of your case your solicitor will be able to give you a rough idea about the level of compensation you might expect if your case is successful. They will take into account certain social security benefits you get because of your injury ( such as income support) because this could affect how much compensation you will get.

You can claim compensation for any injuries or losses suffered which were a direct result of the negligent treatment you received. This can include:

Pain and suffering

On-going treatment

Loss of earnings

Psychiatric or psychological injury

Do clinical negligence cases always end up in court?

Clinical negligence claims rarely end up with a trial in court. Many cases are settled after all the investigations are completed and before legal proceedings are issued, and the majority before a trial commences. Both sides are encouraged to settle the matter quickly and to avoid incurring extra costs.