What is clinical negligence?

Monday 7th June 2021

Clinical negligence, also called medical negligence, is when medical professionals or organisations who owe a legal duty of care fail to meet the expected standard, ultimately leading to the injury or worsening condition of an individual.

Negligence includes malpractice, neglect, mistakes, errors in judgements and other preventable incidents, accidents or errors.

To constitute negligence, the errors or mistakes are preventable – they would have been avoided had the professional(s) taken the right course of action or followed the right protocol in the given circumstances.

Had professionals followed protocol or taken proper action to avoid making mistakes, they might have avoided injuring or otherwise harming the patient. Where failure to follow the correct practice or protocol lead to injury or harm, clinical negligence is a distinct possibility.

On average, over 10,000 medical negligence claims are lodged in the UK each year.

There have been many high-profile cases and incidents involving medical negligence and despite the tightening of regulations and protocols, it remains a pressing issue in healthcare today.

Clinical negligence compensation provides damages to the claimant – payments made to help them recover their harm or injury. Damages can range from smaller payments for relatively minor injuries and accidents to multi-million-pound claims for disastrous, fatal or otherwise life-changing clinical negligence.

Defining clinical negligence

Clinical negligence involves any mental or physical harm inflicted onto an individual where:

● A doctor or medical professional owed a duty of care to that individual

● The duty of care was breached

● As a result of that breach, the individual was harmed or injured in some way that was otherwise preventable

There are many types of clinical negligence spanning all fields of healthcare and clinical care in the UK. This includes hospitals, GP surgeries, dental surgeries, mental health services and clinics, cosmetic surgery clinics and nursing homes.

Clinical negligence cases can be lodged against either public healthcare services (the NHS) or private healthcare services.

The 5 most common areas of clinical negligence are surgical and treatment errors, birth injuries, nursing home negligence and malpractice, medication dispensing errors and late or wrongful diagnosis.

In clinical negligence cases, the liability of a doctor’s or medical professional’s actions will be weighed up using the Bolam and/or Bolitho tests of liability.

These tests, established in law, seek to analyse the doctor’s or medical professional’s responsibility in the situation. They take into account whether or not the doctor followed generally well-established logical practice in their actions, or whether they diverged from ‘mainstream’ treatment options reasonably.

Clinical mistakes and malpractice must also cause demonstrable ‘loss of chance’.

For example, a late cancer diagnosis that comes with the same survival rate as an early cancer diagnosis would constitute negligence.

Conversely, if a late cancer diagnosis caused the survival rate to be slashed from 50% to 25%, then this could constitute negligence.

What is the difference between clinical negligence and making a complaint?

You are always entitled to complain if you feel the service or treatment you received from a healthcare professional or organisation was poor, inadequate or improper in some way.

If you submit a complaint, the most likely outcome will be that you receive an explanation detailing what happened to you alongside some form of justification. The NHS and GPs should respond to complaints but aren’t obliged to act on them. Complaints will not ‘right’ any ‘wrongs’, they merely outline a problem to the receiving body.

On the other hand, clinical negligence is a legal process whereby a claimant lodges a negligence claim for damages.

Damages are paid in money – they are payments that compensate the individual for the cost of their harm, including rehabilitation. The payment varies depending on how the extent of harm and severity of injury inflicted on the patient. Damages cover both mental and physical harm.

Complaints can be pursued simultaneously to clinical negligence claims and may be encouraged where they could back up your claim.

What are the time limits for making a claim?

In most situations, you have 3 years from the incident or realisation of any injury or harm to make a medical negligence claim.

In the case that someone dies, you have 3 years after the date of death to begin a clinical negligence claim.

If you are claiming for someone else with diminished mental capacity then this time limit does not normally apply. It also doesn’t apply to children, so parents aren’t constrained to a 3-year time limit if their child suffers medical negligence.

The child themselves will be able to claim once they reach the age of 18. By the time they turn 21, the opportunity for them to claim for medical negligence that happened before 18 will expire.

What if I think I have a clinical negligence claim?

To start and progress a clinical negligence claim, you will need to consult a clinical negligence solicitor like Waldrons Solicitors.

Before progressing the claim, you will need to submit as much evidence as you can. We can help you identify and obtain the necessary information to make a claim.

If you have already been through the complaints procedure then you will need this information when you submit your claim.

Some medical negligence claims will have to go to court but many can be settled out of court. The solicitor will do everything they can to obtain a favourable resolution outside of court.

How do I make a claim?

The service of a specialist clinical negligence solicitor is vital when making a clinical negligence claim.

Contact Waldrons Solicitors. We will assign a highly experienced clinical negligence solicitor to your case. We will then work with you to establish what happened to you. Every case is different, but for any clinical negligence case, you will need to gather as much supporting evidence and information that you can.

The weight of proof that negligence led to your harm or injury is pivotal to the success of your claim.

We will liaise with medical professionals and organisations to help you obtain evidence. This might include diagnosis paperwork, x-rays and scan details, prescriptions and other transcripts or medical records. This information is key in establishing whether or not a doctor or medical professional’s actions constitute negligence.

Once we have your evidence, we can develop the claim and submit the case. Most successful clinical negligence claims are settled out of court, but in more serious cases, a court date will be issued.

We will prepare court papers and evidence and can represent and advise you in court.

It’s worth noting that this is rare – the vast majority of clinical negligence cases are closed before a court date is established. Court is only usually necessary for serious, severe or complex cases.

How can I pay to make a clinical negligence claim?

As of 2013, Legal Aid is not available for clinical negligence claims. Some level of public funding is however possible, especially when it comes to birth injuries. It is also common to crowdfund medical negligence costs.

Legal Expenses Insurance can also cover clinical negligence compensation fees.

In the vast majority of cases, clinical negligence claims are self-funded, but we will only endeavour to progress cases that we expect to win.

As such, most clinical negligence cases are negotiated on a ‘No Win No Fee’ basis.

Waldrons will only charge you for the work we’ve conducted if we win the negligence case. The solicitor fees will be taken as a percentage of the damages paid.

If you have any query about clinical negligence or are considering starting a claim then please contact Waldrons Solicitors today.