Clinical Negligence - FAQs

Q. In what circumstances might there be a clinical negligence claim?

A. Medical professionals owe a duty of care to those that they treat. Where the standard of care falls below that which can be expected of a reasonable health professional and injury or loss is caused as a result, there may be a clinical negligence claim. Most medical professionals in the UK are employed by the NHS and where treatment is the subject of a clinical negligence claim arising out of NHS treatment, the claim will be against the relevant NHS Trust.

Where treatment is made in a private hospital or clinic the duties of professional care are the same, however, the claim in such circumstances will be against the private hospital or clinic.

In rare occasions where the treating medical professional is not part of a private hospital or similar organisation and is not pursuant to NHS treatment, the health professional is capable of being sued directly.

In the vast majority of cases, the treating health professional whose standard of professional care is in issue will be employed by either the NHS or a private hospital or clinic and the organisation employing that health professional will be vicariously liable for the acts of that health professional.

In most cases it is not necessary to bring an action against the individual health professional as the organisation for which they work is fixed with liability for their actions.

Q. What is the standard of professional care required?

A. Health professionals do not have an absolute duty to get the treatment correct, even where the outcome is catastrophic for the patient. There are certain areas of medicine where there can be different opinions as to the correct course of treatment. The fact that a significant minority of health professionals would have provided the treatment which is being complained of, will in most cases mean that there is no negligence. For there to be clinical negligence, the treatment must be such treatment as no reasonable body of medical opinion would support.

Q. I can establish my treatment was negligent, do I automatically have a claim?

A. The answer is no. Negligence in terms of falling below acceptable standards is not sufficient on its own to mean that a successful claim for clinical negligence can be brought. The negligence must be causative of the loss. This is called causation. A very significant number of potential clinical negligence cases fail because it cannot be shown that the negligence or fault of the health professional, caused an adverse consequence. For example, an inappropriate course of treatment may be followed resulting in damage or loss to the patient, but the health professional will be able to argue that even if the correct course of treatment had been provided, the outcome would have been no different. It is the difficulty of proving causation that makes clinical negligence cases some of the most difficult cases to win.

Q. How do I prove that the standard of care I have received is inadequate so as to create a potential clinical negligence claim?

A. In all cases, it is necessary to obtain expert evidence from an independent suitably qualified health professional. At Pinney Talfourd LLP we have a database of Consultants, who are able to provide the opinion evidence needed to bring a successful claim. Many Consultants will not provide evidence in a clinical negligence case. It is therefore essential that you instruct solicitors who have access to and experience of suitably qualified Consultants. Stephen Eccles who deals with these cases has over 25 years experience and over this time has acquired an excellent bank of Consultants who are willing to provide the necessary expert evidence to bring a successful clinical negligence claim.

Q. I think I have a clinical negligence claim, on what basis will Pinney Talfourd LLP take my case on?

A. We will initially assess the case and then advise you as to how the case might be funded. Typically, we will ask you to make all enquiries possible to see if you have any legal expenses insurance. Where legal expenses insurance is available, we have the experience and successful track record which means that most, if not all, legal expense insurance companies will be happy to instruct us on your behalf with the benefit of your policy.

Where no legal expenses insurance exists we may be willing to take the case on a no win no fee agreement (otherwise known as a conditional fee agreement or CFA). Due to the risks involved in acting in a clinical negligence case on such a basis, we frequently advise that after the event insurance be taken out to cover any risks you face, and we may well require initial funding to cover not our own expenses but the expenses of a clinical negligence consultant in the relevant medical field to provide an initial report. If that initial report is favourable then Pinney Talfourd LLP may be willing to fund on your behalf under a CFA the expert costs of providing a full and detailed report, which will normally include an examination.

In cases where Pinney Talfourd LLP are not willing to take the case on a CFA, we will always act on a privately funded basis.

Q. What is Pinney Talfourd LLP's success rate in clinical negligence cases?

A. Our success rate is well over 60% on cases where we have entered into a CFA agreement.

Q. My relative has died as a result of clinical negligence, can I bring a claim?

A. It is possible for relatives to bring claims on behalf of a patient who has died. There are relevant provisions under the Fatal Accidents Act 1976 (as amended) which enable lump sum compensation to be paid where negligence can be proved and where the claimant was a dependant of the deceased, significant monetary claims can be made in addition. Stephen Eccles has appeared at inquests on behalf of the relatives of deceased patients and successfully proved negligence leading to financial settlement in such cases.

Q. What evidence will I need to provide to my solicitor to bring a successful claim?

A. We will need a detailed chronological history of the claimant and the medical treatment which is complained of. We recommend that if you believe clinical negligence may exist and you may wish to bring a claim, that you write out as accurately as you can a chronology of the relevant events. Notes should be taken of meetings, and a diary kept wherever possible as a contemporaneous record of the treatment.

Q. Does Pinney Talfourd LLP pursue cases where the treatment has been elective, such as cosmetic surgery cases etc?

A. Pinney Talfourd LLP have a long history of acting for cosmetic surgery patients where the procedures have been negligent. Stephen Eccles acted in a large number of cases arising out of the implantation of silicone implants, where the medical devices themselves were defective and continues to act in both breast reduction and augmentation cases where the outcome has been unsatisfactory as a result of negligent treatment.

Q. What are the first steps my solicitors will take if they take my case on?

A. We will want to obtain your GP records and your relevant medical notes and records. We will collate and check those records as to their extent to ensure they are comprehensive, we will order the same and then consider the evidence which they provide and advise accordingly.