fbpx

Our offices are OPEN. Please click here for further information.

  • Home
  • Legal Hub
  • How to Succeed in a Claim for Medical Negligence

By accepting you will be accessing a service provided by a third-party external to https://www.pinneytalfourd.co.uk/

5 minutes reading time (1058 words)

How to Succeed in a Claim for Medical Negligence

How to Succeed in a Claim for Medical Negligence

Medical and clinical negligence claims differ from personal injury claims; to bring a successful compensation claim it has to be shown firstly that mistakes were made that amount to medical negligence and secondly, that, as a result of those mistakes, you (or somebody else) suffered an injury. We look at the key factors in successfully making a claim for medical negligence.

To succeed in a claim for compensation arising out of medical negligence you must be able to show that there was:

A duty of care owed

A breach of that duty ('negligence')

A causal link between the breach of the duty and the injury suffered ('causation')

A loss or injury

All of these requirements must be satisfied. It will not be enough to demonstrate a breach of duty without also proving that an injury, illness or condition has been suffered, or made worse, as a result of that breach of duty.

DUTY OF CARE

​It is necessary to establish that a doctor owes a duty of care to his/her patient. A doctor treating a patient gives rise to a duty of care to that patient. Therefore, establishing a duty of care is very rarely a problem.

BREACH OF DUTY

In order to show that a doctor or nurse has breached their duty of care to a patient, it is necessary to demonstrate that they provided care for a patient which fell below the standard expected of any responsible body of other practitioners in the same specialty (or that they failed to provide care which a responsible body would have felt necessary). This is known as the "Bolam test".

If a doctor or nurse is able to show that they followed a course of action which a responsible body of medical opinion would deem to be correct or acceptable, then they will be able to establish a defence.

HOW CAN I DETERMINE WHETHER THERE HAS BEEN A BREACH OF DUTY?

Evidence from independent medical experts is crucial in establishing whether the treatment in question would be supported by a responsible body of medical opinion.

It is not enough to show that another doctor would have done something different. It is usual to have more than one acceptable way to treat a condition. If there are two schools of thought on acceptable ways to treat and the doctor/nurse acts in accordance with one of those, then a court will not generally find a doctor to have breached his duty. The only exception to this arises from the Bolitho case which explained that any responsible body of opinion must stand up to logical analysis. Doctors must, therefore, comply with a body of opinion which is both responsible and reasonable.

We here at Pinney Talfourd can identify a suitable expert to instruct and obtain this evidence on your behalf after gathering your medical records and obtaining your statement detailing the events.

CAUSATION - WHAT IS IT?

You must show that the negligent treatment has caused you an injury, illness or condition (or materially contributed to an existing condition).

The injury may be:

  • A direct injury resulting from the treatment
  • Failure to make a recovery from a medical condition
  • Death or premature life expectancy
  • A medical condition that has been made more serious

The important point is that it must be caused by the negligent treatment. In other words, you must show that if you had received the right treatment you would not have suffered the injury, illness or condition.

HOW DO I PROVE CAUSATION?

Just like a breach of duty, causation is determined by an independent medical expert. The evidence will consider not only what happened following the negligent treatment but also what would have happened if the right treatment had been provided.

The court works on the basis of what would happen on the balance of probabilities. (i.e. is a particular event more than 50% likely to have happened but for the negligence?).

LOSS OR INJURY

If it has been possible to establish a duty of care, a breach of that duty and causative effect resulting in injury and/or loss, then damages may be recoverable.

WHAT IS RECOVERABLE?

Compensation is referred to as 'damages'. Damages include a sum of money to compensate you, the Claimant, for pain and suffering and the effect of the injury on your enjoyment of life ('general damages'). In addition, you can expect to recover compensation for specific financial losses suffered as a result of the negligently caused injury ('special damages').

WHAT ARE SPECIAL DAMAGES?

The list below gives examples of typical types of special damages which the court may award (obviously these will depend on the circumstances of each individual case):

  • Loss of earnings
  • Loss of a pension
  • Medical expenses
  • Expenses and services rendered by other people – whether provided professionally or by family and friends. These include - nursing care, gardening, housework and the upkeep of the family home
  • Professional care home/rehabilitation/treatment/therapy services
  • Property adaptations or alternative property purchase
  • Expenses relating to the cost of living with disabilities ie - wheelchair, house adaptations, stair lift etc
  • Other more general items – travel expenses, prescription charges etc

HOW DO I KNOW WHAT COMPENSATION I WILL GET?

You don't. It is not until the damages have been quantified (upon receipt of expert evidence and once the special damages have been calculated) that you will have a good idea as to the level of damages you may be awarded.

HOW DO I KNOW IF I HAVE A MEDICAL NEGLIGENCE CLAIM?

​Nobody expects you to know if you have a claim or not. Specialist solicitors are trained to determine this for you. They will review the medical records, listen to your account of the events and then consider the prospects of the claim succeeding. Solicitors should try and ensure it is as stress-free as possible so that you can focus on your recovery, leaving them to do the legal business.

MORE INFORMATION 

If you believe that you have grounds for a medical negligence claim and would like to start the process, Pinney Talfourd are here to help. We have an experienced and dedicated team of specialist medical negligence lawyers based in our offices in Essex and London.

Enter your text here ...



 
What is Shared Ownership?
Discrimination, Harassment and Victimisation - The...

Related Posts

© Pinney Talfourd Solicitors | Disclaimer | Offices: Upminster | Brentwood | Hornchurch | Leigh-on-Sea | Canary Wharf