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Medical Negligence Claims: The Essential Guide
One of our specialist areas is that of medical negligence (or clinical negligence as it is sometimes called).
We have experienced increasing demand for our services over the past few years and have been delighted to have assisted many medical negligence victims in securing compensation for their injuries.
Whilst we are always happy to have a free, no-obligation and confidential discussion, we have also put together a brief guide, which we hope you will find helpful.
Examples of medical negligence
Many people simply do not know whether what has happened to them would be classed as medical negligence or not. It can be a tricky question to answer as not all negative outcomes arise from negligence, and patients are very often left in the dark as to what has happened to them and why.
Below are some examples of situations that could give rise to a medical negligence claim:
Contents of Medical Negligence
Whilst many misdiagnoses are not due to negligence, a number can be. Doctors can fail to apply the correct and/or up-to-date medical knowledge to a particular scenario, leading to a misdiagnosis. Sadly, people incorrectly diagnosed are often left without the treatment they need and can be left suffering for years unnecessarily.
Some misdiagnosis claims arise as a result of failing to undertake the necessary tests. For example, Aston Knight Solicitors succeeded in a claim last year for a client who had torn his ACL ligament in his knee but when he went to hospital the consultant failed to arrange an MRI scan and instead proceeded straight to surgery. Only during surgery was it appreciated he had been misdiagnosed and following surgery he underwent an MRI scan which yielded the correct diagnosis. He therefore underwent unnecessary surgery and was left with a scar as a result.
Misdiagnosis claims can be of particular relevance when it comes to detecting and dealing with serious conditions. like cancer. early enough. Delays in referrals to say chemotherapy and similar can make the difference between life and death. It will however be necessary to prove that the misdiagnosis led to a different outcome than would have been the case i.e. that it made a difference.
Negligent treatment claims
These can take many forms; Aston Knight Solicitors have succeeded with cases ranging from a mother who was not offered a pre-natal vaccine (with the tragic result that her baby daughter was born without immunity to whooping cough and subsequently died from it); an elderly lady who was left alone in a hospital toilet with the emergency cord tied up out of reach; negligent placement of anaesthetic tubing leading to a discolouration injury; incorrect surgery and many more.
In any situation where the treatment provider provides treatment that would not be of the standard that would normally be expected, there is the possibility of a negligent treatment claim. Ordinarily expert evidence from an expert in the same area as the allegedly negligent individual will be needed to prove the treatment was negligent; so, if it is alleged a midwife was negligent, a report from a senior midwife will be needed to analyse the case and conclude whether the treatment was negligent or not. It will also be necessary to prove that the negligent treatment made a difference to the overall outcome (though in some cases it is only necessary to prove the negligent treatment contributed to a negative outcome, so if many things happened to a patient, some negligent and some not, you just need to prove the negligent part(s) contributed to the overall negative outcome).
Failure to gain consent/properly advise about risks
A number of medical treatments will carry with them a risk of a harmful outcome to the patient (not necessarily due to negligence – some procedures are just by their very nature risky). It is imperative that the treatment provider fully advises the patient of the risk so that they may make an informed decision as to whether to proceed. For example, if a procedure could be carried out to someone’s eye that had a small possibility of improving their vision, but a large risk of the patient losing their sight, they may decide not to proceed with the operation, but if they’re not fully informed they may take an unnecessary risk.
This area of law always represents somewhat of a “balancing act” as many procedures will come with a very small risk of a catastrophic outcome, such as paralysis, but if the risk is very small (say one in ten thousand) the doctor would not be expected to emphasise the risk to the point the patient was too alarmed to proceed with treatment they needed. The provider should explain both the risks and the likelihood to enable the patient to make an informed decision.
Aston Knight Solicitors have recently succeeded in a medical negligence claim in which the doctor decided to adopt a very risky approach to a particular problem, without discussing with the patient. It was clear that if the patient was aware of the true risk to reward ratio he would not have proceeded.
Dental negligence claims
This is also a “high demand” area. As dental negligence is simply a type of medical negligence, the same rules apply i.e. there needs to have been negligent treatment and that negligent treatment led to a negative outcome for the patient. Usually, an expert report will be needed from a senior dentist who will explore the case and conclude whether the treatment was negligent or not. Aston Knight Solicitors have recently secured a settlement of £15,000 in which a dentist fitted veneers to a patient whose natural bite meant that they were bound to fail, and in addition the dental work itself was of poor quality.
Sadly, incidents of medical negligence can on occasion lead to the death of the patient, devastating the lives of their loved ones. Aston Knight Solicitors are regularly instructed in fatality cases and have recently secured a settlement of £149,000 for a mother who lost her baby daughter as a result of an instance of medical negligence.
There are two main rights to claim that arise from fatality matters:
1. A claim brought by the estate of the deceased. Such claims are normally in the name or names of either the named executors in the will or, if there is no will, another person (usually next of kin) who is appointed by the probate court to deal with dividing up the deceased person’s assets in what is known as a “grant of administration.”
2. A claim brought by dependants of the deceased based on what they have lost as a result of that person passing away. These claims are known as “dependency claims” and are open to a wide class of people. In this case, “dependency” does not just mean financial dependency: there can be “services dependency” in which a financial claim is made to reflect the lost time and assistance the person would have provided a loved one, such as the time and care a parent would have provided a child with had that parent not passed away. There is also another type of compensation claim that is normally tied in with the dependency claim, being the “Statutory Bereavement Award.” This is a fixed sum, which, at the time of writing (though this is subject to Government review) is only open to the widow/widower of the deceased and the parents of a child. For deaths prior to 1st May 2020 the fixed amount of compensation for this is £12,980 but following a recent change to the law, for deaths on or after 1st May 2020 the award will be £15,120. Please note this award can only be claimed once so if there are two parents of a deceased child it is divided between them.
In practical terms, these two types of claim (and some other items that are a little too complex for this article) are often combined together into one claim, brought by the executor(s) or appointed administrator(s). Those dealing with the claim will include the dependency claims in the overall claim and then divide the overall compensation up at the end. If no executor or administrator brings a claim within the first six months then any dependant can bring the claim in their name, so if you had a situation in which the executors or administrators didn’t wish to bring a claim, any dependant could bring the claim for all of the estate and dependants in their name instead (Section 2(2) of the Fatal Accidents Act 1976).
Human Rights Act claims
Medical negligence fatality matters can also give rise to a special type of additional compensation provided for by the Human Rights Act, which arises in situations whereby a state body has not provided sufficient care for a person, such as a hospital.
Article 2 of the Human Rights Act 1998 states everyone’s right to life shall be protected by law. Examples of successful cases include a hospital that discharged a patient who was clearly substantially psychologically unwell, with the result that the patient committed suicide; cases in which adequate food and water was not provided in hospital; cases in which an obvious need for treatment and care was ignored – there are many possibilities arising from any instance where a state body does not provide adequate care and treatment.
Compensation values are normally on the lower side (say £5,000 to £10,000) and court proceedings must be begun within one year of the harm or death, so it is crucial to determine at the very early stages as to whether this is likely to be the case.
Nervous shock claims
These types of claim often arise in connection with fatality or near-fatality matters in situations whereby an act of negligence leads to a person suffering significant psychological injury even though they may not have actually been physically harmed. There are two types of claim:
1. Primary victims – these are people who suffered nervous shock and were themselves the recipient of negligent treatment; and
2. Secondary victims – these are people who, whilst not the recipient of negligent treatment themselves, witnessed someone they had a close tie of love and affection with, such as a close relative, suffer a “sudden and horrifying event” as a result of the negligent treatment. It is said the event must be “sudden” so that claims in which relatives witness the death of a loved one as a result of medical negligence will rarely fit into this category as their deaths, in the views of the courts at least, are preceded by a period of expectation of death, which the courts seem to think stops the event being “sudden and horrifying.” The courts have in recent years adopted a particularly harsh approach to such cases but, nevertheless, there will still be successful cases in which people suffer nervous shock as a result of negligent treatment of a loved one. Aston Knight Solicitors have recently secured £166,500 for a mother and father who witnessed the death of their daughter as a result of medical negligence, so such cases can still be won with the right expertise.
Not a separate type of medical negligence claim of course, but an integral part of the process and very often linked to a fatality claim.
Every death needs to have a signed death certificate clearly identifying the cause of death. Whilst the majority do not arouse suspicion or concern, instances in which further investigation or clarification is needed may be referred to a coroner for investigation. A coroner may be happy, following review, to confirm the cause and circumstances of death but on other occasions the coroner will order an inquest. At an inquest various medical staff and others who interacted with the deceased close to or at the point of death will be called to give evidence at a court hearing.
Whilst these hearings are supposed to be “fact-finding” only, i.e. not an attempt to prove or disprove guilt, the practical reality is that the family of a lost loved one who suspect wrongdoing will want to unearth such facts and the alleged wrongdoers, usually the NHS, will vigorously defend their position, so they can indeed feel quite adversarial!
In our experience, the manner in which the majority of medical staff approach inquests is, shall we say, less than transparent. Medical staff called to give evidence at an inquest usually appreciate that their own jobs, and those of their superiors with whom they need to work each day, are potentially on the line. We have seen cases in which nurses and doctors have tried to give facts at an inquest which are entirely different from the history recorded in the medical records and/or the family’s recollection. For these reasons we advise all families that it is much better to have legal representation at an inquest, particularly as the facts that emerge from an inquest, and the coroner’s subsequent ruling as to what happened, have a direct bearing on any potential medical negligence case that may flow from the death.
It is very often the case that immediately following an inquest we will proceed with a medical negligence claim and so they all tie in together.
Frequently Asked Questions
What is classed as medical negligence?
The quick answer:
The usual types of claim are: misdiagnosis claims; substandard treatment claims; failure to make a referral or order necessary investigations; failure to secure a patient’s informed consent; neglect of a patient such as a failure to provide treatment or food and drink; failure to undertake a risk assessment such as a falls assessment for an elderly person, but this list is not exhaustive.
The detailed answer:
A claim can arise in any circumstance whereby there is:
1. A duty of care (there will normally always be a duty of care between a medical treatment provider and a patient);
2. The standard of medical treatment is below that which a competent treatment provider would ordinarily be expected to provide. Establishing this can often be the trickiest part of a case as neither patients nor lawyers are in a position to tell the court treatment was below such a standard – that can only come from a suitable expert witness. Such an expert witness will ordinarily be a treatment provider of the same type that is alleged to have been negligent; so, if it is alleged that an orthopaedic surgeon has been negligent an expert report will be obtained from another orthopaedic surgeon with no connection to the case, who will review the case and all of the medical records and then provide an expert opinion as to which, if any, aspects of the treatment were negligent. Sometimes there will be a need for multiple expert reports were there has been a complex history of medical treatment. If such an expert believes the treatment to have been negligent then he or she will explain exactly why to your solicitor who will then use that information to prepare allegations against the treatment provider.
3. Any negligent treatment caused or “materially contributed” to harm. There can be situations in which although treatment is clearly negligent, it did not actually result in any harm. For example, a patient may attend their GP with symptoms that should necessitate going to the Emergency Department but the GP, negligently, advises it is a minor condition. If the patient decides to ignore their GP and go to hospital anyway, and as a result does not come to any harm, then although there was negligence, there is no claim because the Court will only award compensation for the damage caused by the negligence, not simply because negligence took place.
This issue is known as “causation” i.e. what impact, if any, did the medical negligence have? The issue of causation applies to any personal injury claim, not just medical negligence and it is just as important as the issue of whether there was negligence as proving one without the other is no use – both must be proven for there to be a viable claim.
The law on “causation” has been made somewhat easier for medical negligence victims in recent years in that in situations whereby there was a complex chain of events and treatment, such that it just isn’t possible to determine what impact the negligent part(s) of the treatment had, a claimant need only show that the negligent treatment “materially contributed” to the overall negative outcome. Therefore, even if medical science cannot prove for definite whether negligent treatment led to an adverse outcome, but it can prove that it contributed to the overall outcome, the claimant can still succeed.
If those three things can be proven then the claimant patient (or their family in the case of a fatality) will be able to recover compensation.
How much compensation can I get for medical negligence?
The quick answer:
Claims can range from a few thousand pounds for minor injuries that resolve in months, to millions of pounds for severe and permanent disablement. There is: injury compensation (anywhere from a few thousand to hundreds of thousands of pounds dependent upon the injury severity and duration); past financial losses including lost earnings; future financial losses such as future lost or reduced earnings, private medical treatment needs (you have the right to claim private treatment), home adaptation needs and many more; past and future care needs and many more.
The detailed answer:
It sounds like somewhat of a “politician’s answer” but it truly does all depend upon the individual case. When advising clients we often liken compensation to layers in a cake: there are all different types of compensation and they all stack together to reach the total amount. The usual “layers” are as follows:
1.Compensation for pain, suffering and loss of amenity
Basically, this element of compensation is there to reflect both the pain and suffering the victim has suffered, but also the impact it is had on their life. This second point is important as no two people are impacted by injuries the same way: one person with a back injury could miss out on many sporting events and activities but another, more sedentary person may not miss out on as much. Values for this type of compensation vary from a couple of thousand of pounds for injuries that resolve in a few months to hundreds of thousands of pounds for injuries that leave someone permanently disabled such as paralysed.
2. Past lost earnings
In law, when we refer to something being a “past” loss, it means a financial loss that has been incurred before the point of settlement or trial. So if someone suffers medical negligence which leaves them unable to work and settlement occurs two years later, they will have a claim for two years lost earnings plus interest. Sometimes it will be necessary to estimate what someone would have earned as salaries tend to rise each year in line with inflation.
3. Other past financial losses
Expenses may have been incurred for: private medical treatment such as a course of acupuncture; adaptations around the home such as the installation of a stairlift; medication costs; cancelled holidays, and more. There is no definitive list of things that can be claimed for: as long as there is a realistic connection between the financial loss and the negligence then the loss can be included.
4. Past care and assistance needs
The effects of medical negligence may leave a person requiring care and assistance from a loved one, often a family member. The law recognises that if the person had to go out and pay someone to do these things then there would be a financial loss claim for that, so it is only fair that there should be financial compensation for voluntary care and assistance.
It is important to realise (and something defendants tend to pretend to forget!) that it is not just nursing type care that can be claimed, such as helping someone in and out of bed or to use a toilet, it is also more general assistance such as cooking, cleaning and other domestic activities. An hourly rate of around £8.00 per hour (though it can be higher if the care and assistance took place in unsociable hours such as weekends and nights) is applied and then the hours spent are calculated. We will often take statements from those people who provided the care and assistance as evidence. Normally defendants fight such claims but it is something that can be claimed for and so should be included. Depending upon the severity of the injury and duration, past care claims can often reach tens of thousands of pounds.
One final point on this topic is that defendants must “take claimants as they find them.” This basically means that it is no defence to say “well they were already infirm and so a healthy person wouldn’t have needed that much care following an injury” – it doesn’t matter – all that matters is whether, but for the negligence, they would have needed such care. To take an example, say you have a very elderly person who, perhaps with the benefit of numerous adaptations around the home, is in fact independent; they then suffer an act of negligence and as a result are left in a position where they need a lot of care and assistance even if a younger, healthier person, would have managed fairly well after the same type of injury. The elderly person will be able to claim for the full amount of care and assistance they received – their prior vulnerabilities are not to be counted against them.
5. Future lost earnings
Often the highest value aspect of any serious injury claim, claims for future lost earnings are often in the hundreds of thousands of pounds and can reach millions of pounds. A mathematical formula is applied looking at what the person’s likely earnings would have been versus what they are likely to be now as a result of the negligence. It is certainly not as simple as deducting one from the other though; the calculations are complex and have to take into account likely inflation, interest, the person’s prior earning capacity, their likely career path and many more things. Aston Knight Solicitors work with the leading clinical negligence barristers in order to undertake these calculations and put together the highest possible value claim for the client.
6. Reduced access to jobs
This sounds like future lost earnings and, in a way, is closely linked, but what it actually refers to is that in some cases someone may be able to remain in the same job, at the same salary, after an accident, but if they were to ever leave that job they would find it harder to find another suitable job, leading to periods out of work. These claims are usually based on six months to two years’ net salary (though the judge can go as high as three or even five years if he or she thinks appropriate). There is a lot of overlap with regular future lost earnings claims as above and we will need to look closely at the case to decide whether any impact on future earnings should be calculated this way or the other (often it depends upon how serious the injury is e.g. people who are left unable to work would always be subject to a regular future lost earnings claim, but someone not particularly badly affected but who might have some issues in the future, may more likely be seen as a reduced access to jobs claim).
We will always review the case carefully and present the claim in the manner which leads to the maximum award of compensation.
7. Future care and assistance needs
Sadly, some medical negligence injuries will leave a person needing care and assistance into the future. The law recognises financial provision will need to be made for this as it cannot be assumed voluntary assistance will automatically be available. An independent doctor who deals with the type of injuries the victim has sustained will provide an opinion as to whether there will be a need for future care and assistance, and to what extent, upon which a claim is based. In more serious injury cases a report from a care expert will also be obtained; such a care expert will consider all of the medical evidence and meet with the injured person and their family in order to prepare a report on what they think the future care needs will be. Once the likely hours are established, a financial calculation is undertaken, similar to that for future lost earnings, factoring in things like inflation and interest, to determine what the financial sum should be.
8. Future medical expenses
A little known fact is that the law states that when considering a claimant’s need for medical treatment, the fact such treatment is available on the NHS is to be disregarded i.e. it is as if the NHS does not exist. The rationale for this is that it should not be possible for someone to cause harm to another and then place the burden upon the tax payer to treat them.
The same expert doctor who prepares a report upon someone’s injuries and their likely future will also say what medical expenses there may need to be in the future. For example, the doctor may predict the person will need further surgery in 10 years’ time; the solicitors will then undertake a calculation to work out how much that surgery will likely cost in 10 years’ time, on a private basis, and then include such a claim so that the person has the money there to use when they need it. Sometimes it will not be possible to say for certain whether a particular type of treatment will be needed or not so the expert will make a prediction e.g. that there is a 50% chance of a surgical procedure being required in the next 10 years. In that example, 50% of the what the treatment will cost in 10 years’ time can be claimed.
9. Other future financial losses
The list of what can be claimed for is virtually endless: if the Court considers there to be a genuine need, caused by the negligence, it can be included. The central aim of the law when it comes to personal injury and medical negligence is to put people back into the position they would have been had the negligence not occurred.
How do I make a medical negligence claim?
Contact a medical negligence solicitor; most will offer an initial, free-of-charge and confidential discussion where you can explore whether there is likely to be a case or not. The solicitor will undertake a review of the case and advise whether they can take it on a no-win-no-fee basis. Most medical negligence solicitors will, provided prospects of success appear strong enough, agree to take the case on a no-win-no-fee basis and will then run the case for you, with your instructions.
Can you sue the NHS for negligence?
Yes; the NHS are like any other medical treatment provider and have the same duties of care and liabilities to patients as any other provider. In fact, given most healthcare in the UK is provided by the NHS, it is the NHS that are sued the most. When suing GPs, even though they work for the NHS, the claim is usually against them personally and handled by their personal liability insurers, but with hospital doctors it is the hospital itself that is sued, which is an NHS body.
How do I know if I have a medical negligence case?
The only way to know is to speak to an experienced medical negligence solicitor; many will offer a free, no-obligation and confidential discussion from which you can reflect and decide whether there is a case to proceed with. Often an initial report will be needed from an expert in the relevant field (e.g. an orthopaedic surgeon if it is alleged that an orthopaedic surgeon was negligent) reviewing the case and advising which aspects of the treatment were negligent, and what the effect has been.
Aston Knight Solicitors are a specialist litigation firm with an emphasis upon injury at work claims, medical negligence, commercial litigation and general personal injury. We offer a free, confidential and no-obligation consultation which can be in person, via telephone or even video conference such as Zoom, so that you can access free-of-charge and reliable advice at what can be one of the most difficult times of life. Feel free to contact us on 0800 999 6661 or firstname.lastname@example.org