What is Medical Negligence?

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What is Medical Negligence?

Experiencing medical negligence can be highly distressing and result in significant long-term repercussions for you and your family. Whether you have sought out medical advice from a doctor, or have been admitted to hospital for emergency treatment, you have a legal right to expect that the care you receive does not cause you unexpected harm. 

In these circumstances, making a clinical negligence compensation claim can help you to recover financial losses and hold those responsible to account. However, the medical negligence claims process can seem confusing and overwhelming to those who are unused to dealing with the legal system, and it can be hard for those affected by substandard medical care to understand their rights and the legal process.

In this guide, the expert medical negligence solicitors at JMW will help you to better understand the laws and processes around medical negligence, ensuring that anyone looking to make a clinical negligence claim has a strong understanding of what to expect.

What is the definition of medical negligence?

Medical negligence, also called clinical negligence, occurs when a healthcare professional - such as a doctor, nurse or midwife  - provides substandard care to a patient that results in injury or harm. According to the law, to establish that medical negligence has occurred, it must be proven that the healthcare professional owed a duty of care to the patient, breached that duty of care, and that the breach resulted in harm or injury to the patient. This may be because negligent treatment resulted in a new injury to the patient, or because it made an existing condition worse.

Medical negligence cases can vary significantly in their circumstances and seriousness, with some involving life-changing injuries or a permanent health issue for the patient. In other  cases, family members find themselves needing to make a negligence claim because of mistakes that caused the death of a loved one.

Because every case is so different, medical negligence lawyers have a key role to play in helping those who have suffered medical negligence to determine who is at fault, and what kind of compensation they might be entitled to receive.

What is classed as medical negligence?

Mistakes made by medical professionals can have devastating effects on the lives of patients in various ways. Here are examples of some of the most common forms of negligent care that can lead to avoidable harm:

  • Misdiagnosis and delayed diagnosis - when a doctor or nurse fails to diagnose a condition correctly or in a timely manner, leading to a delay in treatment, or incorrect treatment being provided
  • Surgical errors - errors made during surgery, such as operating on the wrong body part or leaving surgical instruments inside the patient
  • Medication errors - administering an incorrect medication or dosage, or failure to consider the patient's medical history and potential interactions with other medications
  • Birth injuries - negligence in the provision of care during pregnancy, labour or delivery, resulting in an injury to the mother or child
  • Failure to obtain informed consent - treating a patient without obtaining proper consent, or not providing sufficient information for the patient to make an informed decision about their treatment

If you are not sure whether you are entitled to make a claim, it is important to speak to an experienced medical negligence lawyer, who can provide you with an expert opinion on whether you have a strong case for clinical negligence.

How do you prove a medical negligence case?

To prove a medical negligence case, you must establish the following elements:

  • That the healthcare professional owed you a duty of care
  • That the medical professional in question breached this duty of care by providing substandard treatment
  • That you suffered injury or harm as a direct result of this breach of duty
  • That the injury or harm suffered resulted in quantifiable damage, such as physical injury or psychological harm, and financial loss

Working with a team of expert medical negligence solicitors can help you assemble the evidence you will need to prove that you have been a victim of medical negligence. For more information on this topic, take a look at our guide on how to prove medical negligence.

How do I make a claim for medical negligence?

The medical negligence claims process will usually proceed as follows:

  1. Seeking legal advice - consult a specialist medical negligence solicitor who can advise you on the merits of your case and guide you through the process
  2. Gather evidence - your chosen medical negligence solicitor will collect all relevant medical records, correspondence and any other material that can support your claim, including expert evidence provided by independent medical advisors
  3. Sending a letter of claim - your clinical negligence solicitors will draft a letter of claim, detailing the allegations of negligence and the impact it has had on your life. This letter will be sent to the healthcare provider or their legal representative
  4. Awaiting a response - the healthcare organisation or individual doctor in question will have four months to investigate the claim and provide a written response, either admitting liability or denying the allegations
  5. Negotiating a settlement - if the opponent admits liability, your solicitor will negotiate a settlement on your behalf. The majority of cases settle at this stage
  6. Court proceedings - if liability is denied or a settlement cannot be reached, your solicitor may recommend proceeding to court. A judge will consider the evidence and decide whether the healthcare provider was negligent and, if so, the amount of compensation to be awarded. Your appointed medical negligence lawyers will represent you during these court proceedings

To learn more about the claims process for medical negligence cases, take a look at JMW's medical negligence claims page.

Can I make a claim on someone else's behalf?

In certain circumstances, it is possible to make a medical negligence claim on behalf of someone else. These include:

  • A parent or legal guardian who can act as a litigation friend to make a claim on behalf of a child under the age of 18.
  • A family member, or someone with legal authority to act as a litigation friend, can make a claim on behalf of any individual who lacks the mental capacity to do so themselves.
  • The executor or administrator of a deceased person's estate can make a claim for compensation on behalf of the estate.

Are there time limits for medical negligence claims?

In the UK, there is generally a three-year time limit for making medical negligence claims. This starts either from the date the negligence occurred, or the date you became aware of the negligence (known as the "date of knowledge").

However, there are some exceptions:

  • For children, the three-year time limit does not begin until they turn 18 years old. They then have until their 21st birthday to make a claim.
  • There is no time limit applied to making a claim on behalf of individuals lacking mental capacity. This is unless they regain their mental capacity, in which case the three-year time limit applies from this date.
  • In cases of fatal medical negligence, the three-year time limit begins from the date of death or the date the negligence was discovered, whichever is later.

How long does a medical negligence claim take?

The time it takes to settle a medical negligence claim will vary depending on the complexity of the case, the willingness of the healthcare provider to admit liability, and the extent of the injuries and damages involved. Some cases can be resolved within a few months, while others may take several years to reach a conclusion.

By getting advice from a medical negligence lawyer with experience in this area of law, you will be able to get a provisional assessment of the complexity of your legal claim, which can provide an indication of how long it could take to resolve. Having experienced legal representation on board will also make it easier to bring the claim to a swift conclusion.

Will I need to go to court?

The vast majority of medical negligence claims are settled out of court through negotiations between your solicitor and the healthcare provider's legal representative. According to data from NHS Resolution, a record 77 per cent of claims were resolved in 2021/22 without court proceedings, with the number of cases going to court falling for five consecutive years.

Your case will only need to proceed to court for a judge to make a decision if a settlement cannot be reached, or liability is disputed. This is more likely to occur if the case is particularly complex or contentious. It is very rare for a case to go to trial. 

In these circumstances, your clinical negligence solicitors will be able to guide you through each stage of the process, representing you during the hearing and working to make the experience as stress-free as possible for you.

Will a claim affect my treatment?

Making a medical negligence claim should not affect your current or future treatment. Healthcare providers have a professional duty to treat patients fairly and without discrimination, regardless of whether a claim has been made against them, and it is illegal for a hospital or doctor to refuse to treat you because of a complaint or an active compensation claim

However, for your own peace of mind, you have the option of requesting to be transferred to a different hospital or referred to a different doctor if you want to continue your treatment elsewhere.

How do I make a medical negligence claim against the NHS?

Making medical negligence claims following substandard care from the NHS follows the same process as any other negligence claim. You do not have to go through the NHS' official complaints process before making a claim, and it will not affect your current treatment.

Many people have reservations about making a medical negligence claim against the NHS, as they may be worried about taking money out of public health budgets and away from frontline care. However, this should not be a concern, because the NHS has its own specialist insurer called NHS Resolution, to which all NHS trusts pay an annual premium to cover medical negligence payouts.

Moreover, the certainty provided by this insurance structure means that NHS claims tend to be settled faster than claims against private medical practitioners. By making a claim, you will also be ensuring that those responsible for medical malpractice within the NHS are held accountable, helping the health service to improve its standards and prevent the same mistake from happening twice.

How do I make a claim against a private sector healthcare provider?

Making a claim against a private sector healthcare provider is slightly different compared to claiming against the NHS. Whereas an NHS medical negligence claim will always be made against the institution itself, professionals in the private sector carry their own professional indemnity insurance, meaning that private medical negligence claims will usually be made against the individual practitioner and their insurance company.

Who pays the compensation for a medical negligence claim?

If your claim is successful, the compensation will typically be paid by the healthcare provider's medical indemnity insurer. In the case of the NHS, this will be paid by NHS Resolution, whereas cases against private healthcare providers will be covered by their individual medical indemnity insurance providers.

What are the benefits of making a medical negligence compensation claim?

Successful clinical negligence claims can deliver a number of important benefits for you and your family. Receiving substandard care from a medical professional can be a highly distressing experience, especially if it leaves you with a serious personal injury, severe disability or another long-term impact.

Making a claim for clinical negligence compensation can help you in the following ways:

  • Financial compensation - a successful claim can provide you with financial resources to help compensate for the pain, suffering and loss of quality of life you have experienced as a result of the negligent treatment. This can also cover any financial losses, such as lost earnings or additional medical expenses.
  • Access to rehabilitation and support - a compensation claim can help you access rehabilitation services - such as physiotherapy, counselling or occupational therapy - to aid in your recovery.
  • Accountability - making a claim can hold the healthcare provider accountable for their actions, ensuring that the right lessons are learned and that nobody else will be put through the same distressing experience.
  • Closure - pursuing a claim can provide a sense of closure for you and your family, allowing you to move forward and focus on recovery.

If you have received substandard medical treatment and want to know more about the process of making a claim for compensation, get in touch with the expert medical negligence solicitors at JMW today. We are able to take cases on a no win, no fee basis, with legal aid available for those that qualify, and can advise you on how much compensation you could be entitled to based on the specifics of your case.

To speak to a specialist solicitor from our medical negligence team, simply call us on 0345 872 6666 today, or allow us to call you back at a more convenient time by completing our online enquiry form.

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