Negligence is the breach of a legal duty of care that is owed to one person by another, and results in damage being caused to that person. Negligence exists in many forms, however clinical (or medical) negligence is expressly concerned with practicing doctors and other health professionals.
A successful clinical negligence claim can result in compensation or damages for those affected, however the burden to prove negligence is on the claimant (i.e. the patient) who must effectively prove the following elements:
- The doctor or other healthcare professional owed a duty to take care of the claimant without causing undue injury;
- There was a breach of that duty to take care;
- That breach of duty has caused harm to the claimant; and
- Damage or other losses have resulted from that harm
The outcome of the case will depend on whether it is more likely than not that the defendant (i.e. the medical professional) was, in actual fact, negligent. Clinical negligence can be in relation to surgery, medication, diagnosis, a delay in treatment, psychiatric care, psychotherapy, counselling, dentistry and childbirth (including damage to the unborn child). It can also include instances of medical omission, i.e. withholding treatment from a patient or inadequately explaining the risks/side effects of a proposed treatment.
The result for a claimant that wins a successful negligence claim is solely monetary. The court cannot force a hospital to change its working practices or improve standards, it can not discipline a health professional, nor make them apologise.
Anthony Wilson, Senior Lawyer, Your Legal Friend, says: “Any patient who seeks medical treatment and puts their complete trust in healthcare professionals should be protected by the law. However you need to demonstrate that not only was there negligence in the first place, but also that any health problems or negative impact on the patient’s life that occurs later were definitely caused by that negligence. Without the help of a specialist legal team the chances of success are much reduced.”
A good way of maximising your chances of success in a clinical negligence challenge is to use a specialist solicitor who practices in Clinical and Medical negligence claims and is a member of The Law Society. According to The Law Society: “Members will have shown that they have and will maintain a high level of knowledge, skills, experience and practice in the area of clinical negligence.” A full list of members can be found on The Law Society’s website at http://www.lawsociety.org.uk.
Taking legal action may seem daunting in the short term, but in the long term it can be extremely beneficial. It can help prevent the same mistakes from happening again and, if successful, support you financially while you’re unable to work.
Want more information? Watch the video below to hear what Doctor Chris has to say on the standards of care in your NHS.
