When we seek medical help, we trust healthcare professionals to provide safe, competent care.
But what happens when things go wrong, and the care received falls below the acceptable standards of care?
That’s where the concept of clinical negligence comes in.
Understanding clinical negligence
Clinical negligence, also known as medical negligence, occurs when a healthcare provider breaches their duty of care, resulting in harm or injury to a patient. It’s not just about mistakes; it’s about preventable harm caused by substandard treatment.
Examples might Include:
- A misdiagnosis or delay in diagnosis
- Surgical errors or wrong-site surgery
- Failure to obtain informed consent
- Prescription mistakes or incorrect medication
- Ignoring known allergies or conditions
- Failure to refer or follow up with patients
It is important to remember that, in order to succeed with a claim in clinical negligence, it is not enough to prove that something went wrong. We must also prove that the negligence caused an avoidable injury. This is known as ‘causation’.
Do I have a clinical negligence claim?
To bring a claim for Clinical negligence, the following three elements must be proven:
- Duty of Care: The health professional owed you a duty of care
- Breach of Duty: the care provided by the health professional fell below the expected standard of care
- Causation: as a result, you suffered harm or injury.
Breach of duty
Let’s start with breach of duty.
What is duty of care?
Every healthcare professional has a legal responsibility to provide care that meets a reasonable standard. This means doing what a competent professional in the same medical field would do in similar circumstances.
This is often complex because there can be different treatment options that would equally be employed by different healthcare professionals.
What is a breach of duty of care?
A breach of duty happens when the care provided by a healthcare professional falls below that reasonable standard.
Causation
Now, moving onto causation.
As we mentioned above, it is not enough to prove just that there was a breach of duty. Breach and causation must be proven in order to succeed with a claim in clinical negligence.
What is causation?
Even if there was a breach in the medical treatment provided, a Claimant must also show that the breach caused or contributed to their injury.
The legal test is whether, but for the negligence, the injury wouldn’t have happened.
Your rights as a patient
If you believe you’ve been harmed due to clinical negligence, you have the right to:
- Request a copy of your medical records
- Make a formal complaint to the healthcare provider
- Seek legal advice on whether you have grounds for a compensation claim
Is there a time limit?
Yes. In most cases, you have three years to bring a claim. This is known as the limitation period. It typically starts from:
- the date the negligence occurred, or
- from the date you first became aware that your injury was linked to negligent treatment (the “date of knowledge”)
There are, however, some exceptions to the rule.
Children: The three-year limit does not begin until their 18th birthday; therefore, they have until the age of 21 to bring a claim.
Mental capacity: if the patient lacks mental capacity to manage their own legal affairs, there may be no time limit.
Steps in a clinical negligence claim
1. Realise something went wrong: You might feel that your treatment caused you harm, or maybe something just doesn’t feel right. That’s where it starts.
2. Gather information: You’re entitled to request copies of your medical records. These can help you understand what happened and when, if things went wrong. You might also consider raising a formal NHS complaint with the healthcare provider to seek answers to the questions you have about your treatment.
3. Seek legal advice: Contact a solicitor who specialises in clinical negligence. Many solicitors offer free initial consultations and can tell you whether they are able to assist you in your claim.
4. Investigate what happened: Your solicitor will gather evidence, often with help from independent medical experts. They’ll try to prove that the care you received was below the standard and caused your injury.
5. Notify the healthcare provider: Your solicitor will send a letter to the hospital or doctor outlining the details of your claim, the allegations of negligence, and the compensation. This is called a “Letter of Claim”.
6. Wait for a response: The healthcare provider has four months to investigate your claim and reply with their response. They’ll either admit liability or deny liability.
7. Settle or go to Court: Most cases settle before trial. Your solicitor will negotiate a fair settlement on your behalf with the defendant. If the healthcare provider denies liability or an agreement isn’t reached, your solicitor may issue Court proceedings and the claim might go to Court. Your solicitor will guide you through the whole process and prepare you for trial.
8. Compensation: If you win your case, you will be awarded compensation for your injuries sustained. This can include damages for pain and suffering, loss of earnings, medical expenses, and other financial losses.
How can we help?
Sadiyah Caratella is a Paralegal in our expert Medical Negligence team, which has been ranked in tier one by the independently researched publication, The Legal 500.
If you have any questions in relation to the subjects discussed in this article, then please get in touch with Sadiyah or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online form.
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