What is medical or clinical negligence? | Bolt Burdon Kemp What is medical or clinical negligence? | Bolt Burdon Kemp

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Medical Negligence

What is medical negligence?

Medical negligence is also referred to as clinical negligence (and is commonly known as medical malpractice in America). It happens when a patient suffers harm as the result of a doctor, or other professional, failing to provide a good standard of practice and care.

In any treatment scenario, the patient’s well-being should be the health carers’ primary concern, and tests, treatment and advice must all be provided to an appropriate standard.

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If an injury, infection or illness occurs, a solicitor will need to determine whether it is the result of a doctor or other healthcare practitioner being in breach of their duty of care to the patient. At Bolt Burdon Kemp, we have a dedicated team of medical negligence solicitors to help you with your claim.

Get in touch with our professional and caring solicitors to discuss your claim, which will usually be funded on a ‘no win, no fee’ basis.

What constitutes medical negligence?

In order to determine whether what has happened to you constitutes medical negligence, a solicitor will instruct a medical expert to assess your claim. They’ll examine your medical records and give their opinion on the treatment provided. Medical negligence typically falls into one or more of the following categories:

  • Misdiagnosis, failure to diagnose or late diagnosis
  • Mistakes made just before, during or just after an operation or procedure
  • Mistakes made when prescribing drugs or treatment options, including neglecting to get your informed consent
  • Failures to give correct (or any) advice about the risks involved in any treatment options

If the medical expert thinks the original healthcare professional was in breach of their duty of care, your solicitor will work with you to prove that the injury, illness or infection you experienced was a direct consequence of the treatment (or lack thereof) provided.

How to make a medical negligence claim

The procedure for investigating a medical negligence claim is described in the Pre-Action Protocol for the Resolution of Clinical Disputes, an official procedure that medical negligence lawyers are expected to follow. In short, the procedure is as follows:

  1. You will need to provide your solicitor with as much information as possible about the treatment received, along with any evidence for financial losses.
  2. With your written consent, your solicitor will then obtain copies of the medical records from the relevant healthcare provider.

Claims for medical negligence should be made promptly, as there are time limits for when you can bring a claim. If you suspect your injury is a result of a healthcare provider falling short of their duty of care, you should speak to a medical negligence solicitor sooner rather than later.

How long does a medical negligence claim take?

Medical negligence compensation claims can take time to settle. Your claim could take anything from 18 months to 4 years, although the latter is usually only if court proceedings are required. Most cases of medical negligence are settled (or denied) before they get to trial, so you may find your claim takes less than this from start to end. Cases involving children, or those where the effects of the negligence have not been fully borne out, will often prolong claims – but it is important to understand the extent of the effects of any negligence so that you can be properly compensated.

It can take a minimum of 3-4 months for your solicitor to gather all the expert medical evidence they need for your claim. If a number of expert reports are needed, or the experts are particularly busy, this can also have an effect on the length of time it takes to get evidence from them. Once your solicitor has gathered all the information they need, they’ll put together a letter of claim to send to the healthcare provider in question. The healthcare provider has 14 days to acknowledge receipt of the letter of claim.

The healthcare provider then has four months within which to investigate your claim and send a full response. In their response, they must clearly accept full or partial responsibility, or deny the claim.

If they admit responsibility, the value of the claim then needs to be agreed. We will ask for some of your compensation to be paid to you at this stage. These interim payments can help pay for any medical care, treatment, support or equipment you might need while your claim is ongoing.

In some cases, a formal apology for the negligent treatment will also be made.

If the healthcare provider denies the claim, their response must clearly explain why this is the case. If responsibility for the claim is denied or a settlement cannot be agreed, court proceedings may need to be started. If your case does go to trial, the court hearing could take between 3-5 days depending on the complexity of the case and the number of experts and witnesses involved.

How much compensation for medical negligence will be awarded?

If it is proven that injury was caused by medical negligence, you will be awarded compensation. The level of compensation will be determined on a case-by-case basis, taking into account:

  • The severity of your injury
  • Your pain, suffering and recovery time
  • Whether or not you’re able to carry out everyday tasks

You can claim compensation for your injury and any financial losses you may have incurred as a result of the injury. This will include any future expenses as well as covering any loss of income you might face if you’re unable to work because of your injury.

Keep in mind that a medical negligence compensation claim is not just about seeking compensation. While the court won’t officially be able to discipline a health professional or force a hospital or individual to change how they work, the case may raise important learning points which the healthcare provider can use to make improvements to their future service. If you’d like to see a formal disciplinary process triggered, you’ll need to make a formal complaint, either using the NHS complaints procedure or other relevant complaints avenues.

Can I claim for medical negligence after 20 years?

There’s usually a time limit of three years for bringing a medical negligence claim. But, crucially, this can either be:

  • Three years from the time the negligence occurred, or
  • Three years from when you first become aware that there was a problem (if this was later than the time at which the negligence occurred)

It’s common with medical negligence cases that the patient won’t realise there’s a problem immediately after the negligence has occurred. But time limits are very much dependent on the facts of each case. If you think you may have a potential claim based on an incident that happened 20 years ago, contact a solicitor as soon as possible. It’s important to consult with a solicitor as soon as you’ve become aware of a problem (or have a suspicion that something was amiss) as it’ll take some time to gather all the information your solicitor needs to issue a claim in court.

Other times when the three-year limit might not apply include:

  • If the patient is under the age of 18. If a child under the age of 18 suffered medical negligence, they have three years from the date of their 18th birthday to bring a claim.
  • If the patient lacks the mental capacity to understand what has happened. In this case, there is typically no immediate time limit to bring a claim. However, if the patient recovers their mental capacity, the three-year limit will apply from the date they recovered it.
  • If the patient has died, their family has three years from their death to make a claim on behalf of the estate. This is still the case if the incident of medical negligence occurred years beforehand. Read more about medical negligence after death in our article.

If the time to make a claim has expired, it’s still worth obtaining legal advice as there may be some limited circumstances in which a court will allow you to make a claim.

Our best advice would be to contact medical negligence solicitors for advice as soon as you’ve realised something may have gone wrong with your treatment, to avoid falling foul of the strict rules regarding time limits to bring a claim.

£70,000 settlement for rogue doctor’s negligence

Our client underwent a surgical procedure by rogue doctor Rod Irvine in 2006. During the operation, Irvine failed to repair bowel incisions, which caused further complications to our client. Irvine was already facing hundreds of claims from previous patients. However, we won the case and negotiated a settlement of £70,000.

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