A claim can be made by anyone who has been harmed or has suffered an injury as a result of sub-standard medical care provided by a medical professional. Medical negligence can happen in a number of ways including; misdiagnosis, negligent medical advice, mistakes during surgery; delays in treatment or incorrect treatment.

A claim may also be brought where a loved one has died as a result of clinical negligence. Claims can be brought on behalf of the deceased’s estate and the dependants of the deceased. Dependants must be able to show that they relied on the deceased for financial support and/or the services (such as help with household chores and looking after children) when the deceased passed away and fall into one of the below categories:

• The husband or wife of the deceased, or former wife or husband;
• A civil partner of the deceased who had been living with the deceased for at least 2 years immediately prior to death, or former civil partner;
• A parent of the deceased, or treated as a parent;
• A child of the deceased, or treated as a child;
• A brother, sister, aunt, uncle, niece, nephew or cousin of the deceased

If you or a family member think you may have suffered harm or a loved one has died as a result of clinical negligence, do contact us for specialist legal advice. We can evaluate your claim and guide you through the process. Our years of experience can help make the process a bit easier and provide you and your family with support throughout the legal process.

There is no hard and fast rule about how long a clinical negligence claim will take and each case is different. It is important that a claim is fully investigated and this will usually include gathering and reviewing medical records and obtaining supportive expert medical opinion before setting out the claim to the Defendant. There must also be a firm medical prognosis before we can properly value the claim and advise on settlement of a claim.

As a guide, more straightforward claims may take 2 to 3 years, where clear evidence can be obtained identifying sub-standard treatment and linking the injury or harm to the negligence. This timeframe will heavily depend on the approach taken by the Defendant including whether they promptly respond to the claim and admit their negligence enabling resolution to be reached swiftly.

More complex claims involving serious and life-changing injuries and complex medical issues can take longer to investigate and may take a number of years to fully resolve. However, these claims are often for substantial compensation awards and we will try to get the best care, treatment and support both during the claim by getting interim payments of compensation from the Defendant, and for the rest of yours or your family member’s life once the case is settled.

To succeed in a clinical negligence claim, you will need to prove:

a) that the care provided by the medical professional fell below a reasonable standard of care (this is called ‘breach of duty’). Whether a medical practitioner’s care fell below a reasonable standard will depend on whether they acted in accordance with acceptable standards. The medical practitioner must have done something or failed to do something that a responsible body of medical professionals in that area would consider was not up to a reasonable standard.

b) that the injuries sustained were caused or materially contributed to by the negligent treatment (this is called ‘causation’). You need to be able to demonstrate that you would have avoided your injuries or these would have been materially reduced had you received proper medical treatment.

In order to be successful, you must prove both breach of duty and causation. It is not enough to succeed in only proving one of these two.

Each case will differ with some cases being tricky on breach of duty and others on causation.

However, it is fair to say that causation can often be the more complex element of claims and is often not straight forward. Even if it can be shown or it is admitted that the Defendant breached their duty of care, this alone will not be enough to be successful in a claim.

To be successful on causation one of the following tests must be established:

a) The “but for” test – this is the standard causation test and to be successful it must be shown that “but for” the negligent medical treatment the injuries or harm would not have occurred; or

b) Material contribution – this test applies where there are multiple causes of the injury and at least one of the causes is negligent. To be successful, it must be shown that the negligent cause made a material contribution to the injury.

Causation in medical negligence claims can be very complex and there may be circumstances where injury, loss or damage may have occurred regardless of the negligent treatment. It is important that the claim is investigated by a specialist legal team alongside medical experts to fully investigate the claim and whether causation can be established.  

The short answer is no, a clinical negligence claim does not have to go to court. However, formal court proceedings may be necessary if the defendant has denied all wrongdoing. Once court proceedings have started, documents including witness statements and expert medical reports will be submitted to court. The majority of claims will settle before reaching trial but there is always a possibility that this may occur.

Your solicitor will do everything they can to help reach a settlement beforehand, as they will not want to put you under the increased stress and pressure of having your case go through the court proceedings. But in some cases it may be required to get you the compensation required.

If you are successful in your claim, compensation will be agreed or awarded for the harm or injury caused by medical negligence. Although financial compensation cannot reverse the effects of the injuries or harm sustained, it can help to transform the lives of those effected.

Generally, compensation is divided in to two categories, general damages and special damages:

(i) General damages

General damages are awarded for the injuries suffered and the pain and suffering caused. This award also reflects the impact that any injuries have had on the ability to enjoy day-to-day life to include impact upon hobbies and lifestyle. General damages are calculated by reference to past awards made in similar cases and the Judicial College Guidelines.

(ii) Special damages

Special damages are the financial losses incurred as a result of the injuries attributable to the negligence. These losses are sometimes referred to as ‘out of pocket’ losses. Typically, these losses include past and future claims for any lost earnings; loss of pension and work benefits; medical expenses; travel to medical appointments; assistance with care and any items or equipment you have bought relating your claim. To recover these losses documentary evidence to support any claim will be required and a medical expert would need to confirm that there was a medical need to incur the losses.

We have vast experience in helping our clients obtain the maximum possible compensation for their injuries, giving them a safe, secure and a bright future.  Compensation can help provide for future private treatment, high quality care, suitable housing, specialist aids and equipment, regular therapy, as well as access to specialist education or occupational rehabilitation.

Compensation in Fatal Claims

Compensation in claims brought where a loved one has died as a result of clinical negligence is often formed of the following:

• Compensation for the pain and suffering that your loved one had to endure before their death;
• Care and assistance and aids and equipment that your loved one needed before their death;
• Counselling costs;
• Funeral expenses;
• Hospice costs;
• Travelling expenses;
• Loss of financial dependency, which incorporates loss of earnings and loss of pension of your loved one;
• Loss of services dependency, which includes the cost of childcare, household chores and domestic tasks that your loved one performed.

Also, certain family members are entitled to claim a Statutory Bereavement Award. These include a spouse, civil partner and parent (if the child is under 18 years old) and  a partner of the deceased who co-habited with the deceased in the same household for two years or more immediately before their partner’s death.