What is Clinical Negligence?

Posted by Kym Provan on

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BL Claims Solicitors specialise in personal injury, clinical negligence and travel claims, providing our clients with hands-on support, nationally.

We are rated as one of the top firms in the UK and believe in speaking to our clients in jargon-free language and ensuring you're speaking to a highly qualified lawyer right from the outset

The Legalese

Clinical negligence is a term used by lawyers. It essentially means that a medical professional has failed to provide a patient with an acceptable standard of care, and that as a result, the patient has suffered additional harm.

However, clinical negligence is not as simple as it seems.

The Reality

Generally people only go to see a medical professional if they already have something wrong. This may relate to an acute onset of symptoms, a potential diagnosis, a surgical procedure or long term treatment.

The clinicians who work in our hospitals, doctors' surgeries and private clinics do everything they can to care for their patients, but sometimes, because everyone is human, mistakes are made. Thankfully, the majority of these mistakes do not cause any real harm and are easily rectified.

The problem arises however when a mistake leads to a patient suffering injuries that they should not have done, had they received an acceptable level of care. When this happens, this is potentially clinical negligence.

So what is Clinical Negligence?

There are three legal tests that must be fulfilled to show clinical negligence by a treating clinician or hospital Trust.

The Duty of Care

There must be a duty of care owed to you personally by the doctor/Trust etc. (This is usually presumed to the patient in a clinical and professional setting.)

Breach of Duty

The standard of care that you were given fell below that which a reasonably competent clinician within that field of expertise and level of experience would have given. This is usually judged on the basis of independent expert evidence within the same field of expertise. 

Just because something has 'gone wrong' does not mean that there has been a breach of the duty of care by those treating you. Sometimes it takes time to reach the correct diagnosis because there can be other, equally likely diagnoses that are explored first. All surgery carries a risk of recognised complications and sometimes these complications occur. There are known side effects of almost all prescription drugs and sometimes long term treatment does not have the benefits that are anticipated, or you do not recover as you had expected. 

However the fact that you don't get the outcome that you were hoping for from your treatment, does not necessarily mean that this was due to a breach in the duty of care owed to you. It is essential that you have the benefit of the correct medical and legal input to consider this critical issue.

Causation

The substandard care that you received must have caused or significantly contributed towards an injury or level of disability that you have sustained, over and above that which you would have sustained in any event with an acceptable level of care. 

For example, if you have a negligently undiagnosed fracture that heals properly within roughly the same time as a diagnosed fracture, you cannot claim any damages because no additional injury has been caused, despite there being a breach of duty. If however you have a negligently undiagnosed fracture which then becomes displaced, leading to the need for surgery and prolonged rehabilitative therapy, you may have a claim. 

This is often the most complex area of clinical negligence claims, primarily because the chances are that you would have suffered some degree of harm in any event. By reason of the fact that you are seeking medical attention, you are usually unwell or injured. 

Separating out the difference between the condition that you are now in and the condition that you would have been in had there not been any breach in the duty of care owed to you, is often complicated and can involve more than one area of medical expertise. It is essential to consider not only the short term but also the longer term picture. Will you improve with rehabilitation, treatment or simply time and how long will that take? Conversely might your condition worsen as you become older or should particular circumstances arise? 

Again, these are all points which are best considered by experienced independent medical experts, not the clinicians who have treated you, in conjunction with specialist lawyers. 

To Recap – what do you need to show to establish clinical negligence? 

In all potential claims for clinical negligence, you will need to be able to establish a duty of care, breach of duty and causation. If you can satisfy all of these tests, then in theory, you have a claim for clinical negligence.

Seeking an apology

For many people, when something has gone wrong with their medical treatment, the most important thing they want is for somebody to take responsibility for what has happened to them, and for that person to say that they are sorry. This process usually starts with the lodging of a complaint about their treatment or the situation they find themselves in. 

Every GP practice, private hospital and NHS Trust must have a complaints policy, which can usually be found on their respective website or on request. If you decide to send in a written complaint, this should be acknowledged in a timely manner (such as within 7 days), the complaint investigated and a response provided. Depending upon the nature of the complaint and the number of clinicians involved, this can take some weeks but you should be kept informed as to when you can expect a reply.     

The reply should detail the relevant treatment that you received, the reasoning behind any clinical decisions that were made and the believed cause of any complications or additional injuries. Where appropriate an apology should be made. Sadly though, even in the era of the Duty of Candour within the NHS, this is often not forthcoming. 

Bringing a clinical negligence claim

If the complaints process has not provided an adequate explanation or apology, or if a person's life has been substantially affected by their negligently caused injuries, perhaps with significant financial consequences, a person may feel that they have little choice but to pursue a clinical negligence claim. 

If you want to pursue a clinical negligence claim, you must do so within the Limitation period. In this context "bringing a claim" means issuing formal court proceedings. Your solicitor will need a considerable period of time to properly investigate the merits of the claim before being in a position to do this. The Limitation period for clinical negligence cases in England and Wales is generally within three years of the date of the treatment complained of, although sometimes the injury or possible link to the treatment does not become apparent until a later date, in which case the three year period can run from then. Where a child has been injured, the three year period starts to run from their 18th birthday. There are also special rules that apply if a person lacks mental capacity, or where the injured person has subsequently died. Legal advice should be sought if there is any doubt. 

In order to pursue a compensation claim, you obviously have to be able to show that you have suffered additional injuries as a result of clinical negligence, as set out above. It can be seen that bringing a clinical negligence claim is often a complicated, lengthy process in itself and it can be emotionally draining for people who may already have a lot to deal with. 

Once clinical negligence is established, the next step is to consider how the additional injuries that you have suffered have impacted upon every area of your life, and to try to place a financial value on any losses sustained. There is no denying that litigation can be a stressful process for many and for this reason, before committing themselves to the litigation process, many clients want to know how much compensation they might receive.

What is my claim worth?

There is no ready-reckoner for clinical negligence claims that can tell you precisely what your claim is worth. For this you will have to take expert advice. 

Clinical negligence claims can vary from a misdiagnosed fracture to a failure to diagnose cancer before it becomes untreatable; from poorly performed surgery, where the patient is left with a temporary colostomy, to a case where a mismanaged birth has resulted in a child being born with cerebral palsy, dependent upon care for their entire life. There are no two cases the same and each case is entirely individual.

The amount of compensation that you may be awarded is assessed in terms of the severity of the additional injury that you sustained, the duration of the injury and the effect that this has had (and will have) upon all other aspects of your life. 

The impact that an injury has had upon your life can be relatively small or on the other hand, can be life-changing. The issues that need to be considered include your earning potential, your ability to live independently, where you can live, your ability to socialise and to have personal and family relationships, any equipment or treatment that might be needed to help you as well as numerous other factors dependent upon the facts of each specific case. 

These issues are determined by information provided by you, documentary evidence in support, medical and other experts (such as occupational therapists, forensic accountants or architects), and your specialist legal advisors, who can advise on how the Courts will interpret this information into a financial valuation of your claim. 

Catastrophic cases

There are sadly cases where people suffer extremely serious and long-term consequences because of a clinician's unintended mistake, including the need for extended and traumatic treatment, severe disablement through brain or spinal injury, or a child born with cerebral palsy requiring 24 hour care. 

Such cases are often complex and fraught with conflicting priorities for the clients and their families. It is essential that families have the support of experienced legal and expert teams to guide them through the process and to offer advice as to how public and voluntary services might be better accessed to ease their problems until financial compensation becomes available.

Wherever possible, interim payments are secured so that more formal practical help can be brought in as soon as possible, such as a case manager to organise therapies, a care regime, property adaptations or even the purchase of a new adapted property.  

These maximum severity cases can take several years to conclude, especially if the longer-term prognosis cannot be determined for a period of time. The importance of working as part of an integrated team with the family, care professionals, medical practitioners, medical and quantum experts and the specialist legal advisors cannot be emphasised enough.

Death caused by clinical negligence  

The worst and most tragic outcome that can occur as a result of clinical negligence is the death of someone that you love and the bereavement that you suffer as a consequence. This can be compounded if the loss of your loved one causes financial difficulties or other hardship. 

No amount of money can ever make up for the death of another or the loss that the family feel. However, sometimes in a quest for answers or an apology, or through a desire to make sure that the same thing does not happen again, or because they don't know how they will cope financially , people seek to pursue a clinical negligence claim in relation to the death of a loved family member.

There are certain categories of individuals that are able to pursue a clinical negligence claim in this way, and special rules about how the financial value of the claim is calculated. Once again, expert specialist legal and medical advice is essential.  

Proportionality

In addition to the tests referred to above, lawyers now also have to strictly apply a fourth test of proportionality to ensure that if they take your case on, on a no win – no fee (conditional fee agreement) basis, they can recover their costs at the conclusion of a successful case. Essentially this means that in most cases the potential value of the claim must be more than the anticipated costs of concluding the claim. Given the heavy reliance upon independent expert evidence in clinical negligence claims, this in itself can cause further difficulties. 

How we can help?

At BL Claims solicitors we have a large team of specialised clinical negligence lawyers who can help you through all of the issues discussed above. We provide a free half hour interview to all new enquirers to discuss the concerns that they may have about their clinical treatment and are able to provide an informed view on their prospective case within a week, due to the experience and medical expertise of our own in-house team. 

John White, head of clinical negligence within the firm, is a qualified doctor. Kym Provan who heads our Southampton office, and Ruth Powell, who heads our London office, are both dedicated clinical negligence lawyers with rankings in the Chambers legal directory. Patricia Wakeford, senior associate in the Southampton office, is a qualified nurse and midwife. We also have two qualified nurses and a specialist quantum expert within the team. 

We have excellent links with the most highly thought of experts and with the top clinical negligence barristers. Client care is our first priority and we will work with you to seek the best possible solution in the specific circumstances of your particular case. 

BL Claims Solicitors are here to help

If you would like to talk to someone and discuss a potential claim please call us on 0344 620 6600 anytime between 8am and 6pm Monday to Friday, or if you would prefer you can email us at info@blclaims.co.uk

About the Author

Photograph of Kym Provan

Kym specialises in clinical negligence claims and heads our clinical negligence team in Southampton.

Kym Provan
Email Kym
023 8085 7317

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