What Is Considered Medical Negligence in Private Healthcare?

Medical negligence occurs when a healthcare professional provides a standard of care that falls below what is reasonably expected, directly causing a patient to experience an injury, a new health issue, or the worsening of an existing condition. An undesirable outcome from medical treatment does not automatically mean negligence has occurred.

To bring a successful medical negligence compensation claim, it is necessary to prove the following:

1. Existence of duty: It must be determined that the professional in question owed a duty of care to those they treat. In the case of healthcare provision, this is straightforward to establish.
2. Breach of duty: You must show that the care provided by the doctor, surgeon, or other private healthcare professional fell below the standard of a reasonably competent professional in that field.
3. Causation: You must establish that this breach of duty directly caused or contributed to your injury or avoidable harm. It is not enough to show that a mistake was made; you must prove the mistake caused you harm.

If all three of these criteria are met, that equates to “negligence”. Our experienced medical negligence solicitors will guide you through this process, gathering the necessary evidence and consulting independent medical experts to build a strong foundation for your claim.

What Are the Differences Between Private and NHS Negligence Claims?

While the legal principles for proving medical negligence are the same whether the treatment was in the private sector or on the NHS, there are key differences in how negligence claims are handled. The claims process for private healthcare negligence is similar to that for NHS claims, but it may involve different contractual obligations and expectations.

Who is liable?

In NHS negligence claims, the legal action is almost always brought against the NHS Hospital Trust, which is responsible for its employees. In private healthcare, this differs. The doctors, consultants, surgeons etc are usually independent contractors, and not direct employees of the private hospital.

This means that for many private hospital negligence claims, the claim must be brought against the individual doctor and their professional indemnity insurer, rather than the hospital itself. In some cases, both the individual and the private hospital may be defendants, especially if we are concerned with the care provided by the hospital staff, such as nurses. Our medical negligence solicitors have the expertise to identify the correct defendant to ensure your claim is directed appropriately.

The role of contract law

When you receive private medical treatment, you enter into a contract with the healthcare provider. This contract sets out the treatment to be provided and often an expected outcome. This provides a potential second route for a compensation claim. If the healthcare provider fails to deliver the promised care or outcome, you may have a claim for “breach of contract” in addition to what is known as a tortious claim for clinical negligence. This is a significant difference from claims against the NHS, which are based almost entirely on general negligence principles.

Complaints procedures

The NHS has a single, statutory complaints procedure that patients must follow. Private healthcare providers do not have a unified system; and each private hospital and clinic will have its own internal formal complaints procedure. While making a complaint can be a useful first step, it is separate from the legal claims process for medical negligence compensation.

What Is the Process for Making a Private Healthcare Negligence Claim?

To pursue a private healthcare negligence claim, your solicitor will undertake a thorough investigation. This involves:

• Initial consultation: first, contact our expert medical negligence claims team for a free initial consultation. We will evaluate your private healthcare claim, determine whether you have a strong case, and set expectations for what the process involves. If you do not wish to proceed with the claim, there is no obligation to do so.
• Gathering your medical records: we will obtain all relevant medical records from the private hospital, clinic, and any other healthcare provider involved in your care.
• Expert medical evidence: we will instruct independent medical experts in the relevant specialism to review your records. They will provide a professional opinion on whether the care you received was of a reasonable standard and whether any failings caused your injury. A supportive report from an expert is essential.
• Letter of Claim: if the expert evidence is supportive, we will send a formal Letter of Claim to the defendant (the clinician and/or the private hospital). This document details the allegations of negligence and the harm it has caused.
• Defendant's response: the defendant has four months to investigate and provide a formal response, indicating whether they admit or deny liability for your injuries.
• Negotiation and settlement: most medical negligence claims are resolved through negotiation without needing to go to court. Our solicitors will negotiate on your behalf to secure the best award we can, based upon the evidence. If the defendant denies liability or a fair settlement cannot be reached, we will advise you on the next steps, namely commencing court proceedings.

You can learn more about the steps by reading our guide to the medical negligence claims process.

What Is the Time Limit for a Private Healthcare Negligence Claim?

The law sets strict time limits for pursuing medical negligence claims. Under the Limitation Act 1980, you generally have three years to bring a claim.

This three-year time limit typically begins from the "date of knowledge" - the date you first knew, or could reasonably have been expected to know, that your injury was connected to the medical treatment you received. This may be the date the negligence occurred or it could be months or even years later.

There are a couple of main exceptions to the time limit:

• Children: if the person who experienced medical negligence was under 18, the three-year time limit does not start until their 18th birthday. They therefore have until their 21st birthday to pursue a claim.
• Lack of mental capacity: if a person lacks the mental capacity to manage their own legal affairs (for example, due to a brain injury), then the time limit simply does not run, unless they regain capacity, at which point the three-year time period commences.

It is always best to seek legal advice as soon as you think you may have a claim, as investigating private healthcare negligence takes time. Read our explainer on the time limits for medical negligence claims.

How Much Compensation for Private Healthcare Negligence?

The amount of compensation awarded in a medical negligence claim depends entirely on the individual circumstances of your case, the severity of your injury, and the impact it has had on your life. Compensation is calculated to restore you, as much as possible, to the position you would have been in had the negligent treatment never occurred.

Private hospital negligence compensation is divided into two parts:

General damages

This is compensation for the pain, suffering and ‘loss of amenity’ (the impact on your quality of life) caused by the medical negligence. This includes compensation for physical injuries and psychological distress.

Special damages

This part of the claim covers any financial losses and expenses you have incurred, or will incur in the future, as a result of the negligence. These can include:

• Loss of past and future earnings, and pension losses.
• The cost of private medical treatment, corrective surgery or therapy.
• Rehabilitation costs.
• The cost of care and assistance, even if provided by family members.
• Adaptations to your home or car.
• The cost of specialist equipment.
• Travel expenses for medical appointments.

Our dedicated medical negligence solicitors will meticulously assess the full impact of the negligence on your life to ensure your compensation claim reflects all of your past, present and future needs.