Think you have a medical negligence claim?
If you think you have a medical negligence claim, but aren’t sure what the process involves, we’ve produced this guide to help you. In it, we cover how liability is determined, how we demonstrate that negligence caused your injury, and how damages are calculated on your behalf.
If, however, you want to speak to a specialist medical negligence solicitor about making a claim, make sure to book a call with a member of our London-based team now.
The three steps of the medical negligence claim process
One way of answering the above question is to explain the three steps involved in every claim. Think of each step as a hurdle that has to be cleared in order for your claim to be successful. If your case falls at any of the hurdles, your claim will fail.
1 – Determining liability
Your case has to show that there has been a breach of the defendant practitioners’ duty of care – i.e. their responsibility to keep you safe from harm as far as is reasonably possible – and that this has led to negligent medical treatment. Your lawyers, therefore, have to prove that a clinician or health professional has not exercised a reasonable standard of skill or care when treating you.
The standard of medical treatment has to be judged in the context of the area of medicine involved, and the time when you had treatment. The clinician must have done something, or failed to do something, that his or her colleagues would say showed that your treatment wasn’t up to a proper standard.
Of course, doctors and medical staff can get something wrong without being negligent. This really is a question for medical experts. So unless another medical professional says there has been negligence, you won’t be able to bring a claim.
Example: when a caesarean section is performed, sometimes an inadvertent injury to the bladder occurs (the bladder being in close proximity to the uterus). If the bladder is in an abnormal position (for example, high up over the uterus) it will not be judged negligent for the injury to have occurred. But, if the bladder is in a normal position and is cut during the caesarean section, an expert obstetrician is likely to support a claim for negligence.
2 – Demonstrating ‘causation’
In order for your claim to be successful, you must also demonstrate ‘causation’. I.e. you must show that your injury or condition was caused by the negligent treatment.
The court won’t take into account any outcomes from your treatment that might have been expected, for example if the risks were made clear to you prior to treatment, or any pain and suffering that would unfortunately have been inevitable. You can only claim for extra pain and suffering if it was caused by the negligence. Medical experts will need to assess your situation.
Example: if you undergo spinal surgery to the lumbar spine (your lower back), it is likely that you already (pre-operatively) have an issue which is causing symptoms, perhaps including pain in the back and radiating into the legs (sciatica). If the surgery is done incorrectly, so that the nerves causing the sciatic pain are not properly decompressed, you will probably be able to recover damages for the failure to ease the pain in your legs.
However, you are likely to have been warned that the operation may not, even if successfully performed, relieve all of your back pain. It is unlikely therefore that you will be able to recover damages in respect of any ongoing back pain.
3 – Calculating damages
In order to make a compensation claim, you must be able to demonstrate that you’ve suffered losses.
The court, as part of its ruling, will calculate the amount of compensation you should receive for any injury caused by the negligent treatment. This is known as the value of your claim, and is what your opponent agrees to pay, or what the court decides if no agreement is possible.
This award (as covered below) is divided into general damages, the sum given for your pain and suffering and “loss of amenity” (the loss of ability to do the things you once enjoyed), and special damages – your actual quantifiable financial losses.
Special damages might include loss of earnings, both past and future, lost pension, the costs of care that you might need if you are severely injured, adaptations to your property to take account any loss of mobility, equipment, medical treatment and therapies, and any other financial losses which can be attributed to the negligence.
If you have any further questions for our team, make sure to take a look at our full medical negligence questions guide here.