What is ‘clinical negligence’?

If you have sustained an injury which was caused or contributed to by sub-standard medical care, you may be entitled to compensation for ‘clinical negligence’.  This applies to care provided by any medical or dental practitioner, both via the NHS and privately.

Clinical negligence claims can arise from any aspect of medical treatment.  The most common ones are:

  • Failure  or delay in diagnosis and/or referral to a specialist
  • Misinterpretation of tests result or scans
  • Failure to warn of risks of treatment
  • Failure to obtain proper consent to treatment
  • Incorrectly prescribed medication
  • Surgical errors

Are clinical negligence claims harder to prove?

A claim against a medical practitioner is very different to a claim for personal injury arising out of, say, an accident at work or a road traffic accident.  In those types of claims, it is usually fairly easy to determine who is at fault for the accident and the injuries it caused.

In order to succeed in a clinical negligence claim you must prove that:

  • The care you received fell below the standard expected of a competent medical practitioner
  • No responsible medical practitioner would have acted in the same way
  • The sub-standard care caused, or materially contributed to, the injury you sustained

The success (or otherwise) of a clinical negligence claim rests entirely on medical evidence from an independent expert to determine whether those points can be proven.

Is there always one person to blame?

If your treatment was provided at an NHS hospital, the correct Defendant to your claim will be the NHS Trust responsible for the particular hospital.

If the treatment was provided by your GP, that GP (or the practice for whom they work) will be the Defendant.

Identifying the correct Defendant to a clinical negligence claim can sometimes be a difficult process, particularly if you have received treatment from several doctors in a number of different places.  It might be that there are a number of different practitioners who could be to blame.

In cases involving private medical treatment, the claim will normally proceed against the doctor personally.  Private medical practitioners are obliged to hold professional indemnity insurance to deal with any claims on their behalf. 

Is there is a shorter time frame in which to bring a clinical negligence claim?

Clinical negligence claims have the same 3-year time limit as any other personal injury claims.  The difference is that clinical negligence claims will almost certainly take longer to conclude and, therefore, it is crucial to seek specialist legal advice as soon as you become aware of any potential problem with your medical care.

The issues in a clinical negligence claim are often much more complicated than a personal injury claim arising from an accident.  Also, the medical evidence required to prove the claim is likely to be much more extensive and could span a number of different disciplines.  It will take some time to finalise all of the medical evidence needed to prove your claim. 

Does it take a longer time to go through the medical records in clinical negligence claims?

The first and most important stage in a clinical negligence claim is for your solicitor to review a complete set of your medical records.  The records should detail all of the medical investigations, treatment and advice that you have received and identify the medical practitioners involved in your care.

Reviewing records can be a lengthy process as they contain all of the information available to support your claim.

In clinical negligence claims, the medical records are almost always more extensive than other personal injury claims as the claimant was already receiving treatment before the claim arose. 

Do clinical negligence claims always go to court?

It is unlikely that a clinical negligence claim will go all the way to court.  The independent medical evidence is usually quite clear in determining whether any aspect of your treatment was negligent and, therefore, whether your claim will succeed.

If the medical evidence is favourable, the majority of cases reach settlement without the need to commence or issue court proceedings.

In the claims where court proceedings are issued (either to deal with a dispute on liability or on the value of the claim), most will reach an amicable settlement before getting to a trial. 

Are some clinical negligence claims more about complaining rather than the injuries sustained?

It really depends on the nature of the claim, the nature of the sub-standard treatment and the damage and losses it has caused.

The effects of clinical negligence are potentially life-changing.  If the treatment has caused a serious, long-term injury the main objective is usually to seek compensation for that injury and for any financial losses (e.g. loss of earnings or additional medical costs) that result from it.

That said, many victims of medical negligence are anxious to ensure that the same thing does not happen to others and are keen to make a complaint to the hospital or medical practitioner straight away to prevent this.

For more information

If you feel that you have received sub-standard medical care or treatment, you should seek specialist advice without delay. Your first meeting with us, whether at home, the hospital or at our offices, will always be completely free. Bray & Bray have three main offices across Leicestershire, feel free to phone or pop in to talk to our solicitors.