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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.
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.
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.
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.
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:
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.
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?).
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').
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.
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.
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