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Two surgeons working in the operating theatre of a hospital illustrating how a clinical negligence claim can be made

When a patient receives substandard care from a medical professional, they may have a claim for clinical negligence. Such a claim can be brought against a number of healthcare professionals for example;

  • NHS Hospital Trusts
  • Private doctors/hospitals
  • General Practitioners (GP)
  • Nurses
  • Opticians
  • Dentists
  • Pharmacists

If a patient feels they have been the victim of negligence in a healthcare setting, then they should seek legal advice. The solicitor should have experience in clinical negligence claims.

Funding a claim for clinical negligence

If it is felt the claim has reasonable prospects the claim will be investigated. Such claims can be funded in a variety of ways but often by way of insurance, conditional fee agreement (commonly referred to as a no win no fee) or legal aid. Legal aid however is mainly limited to claims relating to children who have suffered a severe brain injury in pregnancy or during or shortly after birth.

Once funding is resolved, it will be necessary to obtain all medical records. These are then reviewed by the solicitor or case handler with conduct of the claim. It may be following review that additional information is required, or the records may need to be sorted and organised in readiness to approach an independent medical expert.

The medical records and the expert reports form the basis of the claim. The expert or experts instructed on a claim varies from case to case and will depend on the type of claim and the qualification or discipline of the healthcare provider who acted negligently and the harm caused. It is not uncommon for several medical reports to be obtained and this can involve the client being examined. The experts will consider the legal test applicable to clinical negligence, as set out below.

The legal test

Clinical negligence is the breach of a legal duty of care owed to a patient by a person of the medical profession, which results in harm being caused to that patient. Proving clinical negligence is a “two-limb” test;

  1. Breach of duty,
  2. Causation.

Breach of duty

Firstly, it is necessary to establish that there has been a breach of duty of care in the provision of medical treatment. Healthcare providers owe a duty of care to their patients. This legal test pertains to the standard of the ordinary skilled man exercising and professing to have that special skill. Therefore, a healthcare provider is not negligent if he or she has acted in accordance with a practice accepted as proper by a responsible body.

Causation

It is also a further requirement to establish causation. It must be proved that negligence has resulted in damage (injury), which would not have occurred, had it not been for the breach of duty of care. The evidential standard in relation to causation is on the balance of probabilities – certainty or even near certainty is not required ((i.e. a greater than 50% chance). The method of establishing causation is the “but for” test. This test asks ‘was it necessary’ for the Defendant’s act/omission to have occurred for the harm to have occurred’.

The burden of establishing the conduct complained of causing physical harm or financial loss rests on the patient (Claimant). The records and medical evidence will be the crucial evidence in investigating and proving the claim, along with witness evidence.

The claims process

The claim will be pursued following the Pre-Action Protocol for the Resolution of Clinical Disputes. This sets out the steps required for the claim and the aims of the protocol are to maintain and/or restore the patient/healthcare provider relationship in an open and transparent way, to reduce delays and ensure proportionality of costs and finally to resolve as many disputes as possible, without the need to commence Court Proceedings. This means that investigations take place in accordance with the protocol and once they are finalised, a letter of claim is served on the alleged negligent party. This will outline the chronology and the Claimant’s case. The negligent party or Defendant will then consider the same and serve a letter of response within four months. The Defendant will have sight of the medical records and will most likely obtain their own medical evidence, as part of their investigations.

The letter of response may deny liability, admit liability in full or partially admit liability. The next steps will vary upon the Defendant’s stance on liability. If the claim is denied, it may be necessary to return to medical experts and seek advice from a Barrister and potentially commence Court Proceedings, if the parties are unable to narrow the issues. If a partial or full admission is received, more evidence may be required by both parties to try and reach an amicable conclusion to the claim.

What can be claimed?

Clinical negligence claims can take a number of years to reach a conclusion. Settlements in such claims vary and are based on case law and judicial guidelines. A Claimant can claim for general and special damages. General damages relate to pain, suffering and loss of amenity and special damages can be expenses that flow from the negligence such as loss of earnings, care or travel. The heads of loss that can be recovered differ from case to case. It must be shown that they flow from the alleged negligence in order to be recovered.

Clinical negligence lawyers are mindful that pursuing a claim is not just about monetary compensation, it is also about finding answers and helping Claimants move forward. There is an emotional impact and often the victims of such claims want an apology.


Written by Hayley Collinson of Hudgell Solicitors

Hayley Collinson is an associate in the Clinical Negligence team at Brain Injury Group member firm Hudgell Solicitors and specialises in medical negligence and birth negligence issues.

Hudgell Solicitors serve clients nationwide and have offices in Hull, London and Manchester.

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