What is medical negligence, and how much can you claim for it?
If you’re asking yourself ‘What is medical negligence?’, as medical negligence lawyers we’re ideally placed to help. If you think you have a claim, however, contact our specialist team now.
The three steps of medical negligence claims
One way of answering the question ‘What is medical negligence?’ 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 in a medical negligence case
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 medical negligence 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 a medical negligence case
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 as a result of a medical negligence claim
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.
What you might receive for a compensation claim
No two medical negligence cases are exactly the same. However, as mentioned above, there are guidelines for how much someone should receive as a result of a medical negligence claim.
Therefore, depending on the severity of the case, you can be awarded anything from low thousands of pounds for minor complications such as those as a result of a misdiagnosed fracture, all the way to many millions of pounds for complex cases such as those involving serious birth injuries like cerebral palsy.
The best advice we can give though is to contact a medical negligence solicitor to discuss your claim, as no solicitor should speculate on the value of a claim until they have the full details of your specific circumstances.
Calculating the compensation award
As a result of a successful medical negligence claim, the claimant will be awarded damages. This financial compensation is made up of two parts:
- General damages: this is compensation for your pain, suffering and effects on your day-to-day life. How much you receive will depend on the Judicial Studies Board Guidelines and past awards made in similar cases.
- Special damages: these include funds for any financial losses, whether in the past or the future, that have happened as a result of the negligence suffered. In order for this to be calculated you’ll need to provide evidence and documentary proof to support any claim.
Interest will also be included in any award you receive.
Substantial awards, such as those for serious, life-changing complications to newborn babies, can be managed by a professional deputy through a trust. This can help to ensure that payments (usually ‘index-linked’, meaning they will change based upon inflation or cost of living changes) will last throughout the lifetime of the claimant.
If you have any further questions about medical negligence claims and compensation, take a look at our answers to many of the most frequently asked questions here.
“A premier Somerset firm with experience of a broad range of high-value matters, including catastrophic birth injury claims. Routinely engaged on cerebral palsy cases and spinal injury claims, and offers expertise in weight loss surgery and dental negligence matters. Strengths (Quotes mainly from clients): “Withy King were caring and understood us. They listened to our concerns and needs, and helped in whichever way they could.” “They are incredibly organised, easy to approach and they have a very supportive team who are incredibly sympathetic.” Notable practitioners: Head of department Simon Elliman (Band 1) oversees an array of complex claims, including cerebral palsy and spinal injury matters. In addition he acts on dental negligence cases. Sources say: “He is very able and he inspires confidence through calmness.” Market observers consider Paul Rumley (Band 1) “a very approachable lawyer with vast experience on high-value and complex cases.” He handles a range of matters including birth injury claims, fatal accidents and delay in diagnosis of cancer claims.” Chambers 2017 Somerset
“Highly commended firm with an excellent reputation across a broad spectrum of clinical negligence matters. Routinely acts on catastrophic cases including brain and spinal injury claims. Also noted for its handling of matters arising from amputation, delayed diagnosis and weight loss surgery. Strengths (Quotes mainly from clients): “They’ve been amazing. They spoke to me on a level I understood. They are very understanding and compassionate and they advised me well the whole way through.” Notable practitioners: Head of department Richard Coleman (Band 1) offers vast experience of complex claims involving cerebral palsy, spinal injury and bariatric surgery, among other matters. “He is very good at negotiating settlements in difficult cases” and “doesn’t lose sight of the human aspect of it all,” assert sources.” Chambers 2017 Oxford and surrounds
“Royds Withy King is a ‘leading firm’ for catastrophic birth injury cases. Key figures include practice head Simon Elliman, who handles dental negligence, cerebral palsy and spinal injury claims; ‘first-rate solicitor’ Paul Rumley; and Kerstin Kubiak, who stands out for her ‘exceptional analysis’.” Legal 500 2016 South West
“The ‘knowledgeable, dependable and competent’ team at Royds Withy King is led by ‘astute strategist’ Richard Coleman and includes Tracy Norris-Evans, who is ‘extremely knowledgeable and committed to her clients’.” Legal 500 2016 South East