If you are considering making a medical negligence claim in the UK, we encourage you to seek legal advice at the earliest possible opportunity, as the support of a legal professional can make a potentially tenuous process more straightforward to deal with.
This site is about UK medical negligence.
But what does this term, ‘medical negligence’, mean exactly?
Legally, medical professionals are accountable for their ‘duty of care’ to prevent foreseeable harm, which can either be the result of an actual act or an omission that is to the detriment of the patient’s interests. Medical negligence is viewed as direct result of failing this duty, which is prosecutable for the injury it causes.
What should I know about medical negligence claims in the UK?
First of all, it’s important to consider that the plaintiff (the person making the claim) has the burden of proof to prove that, 1) a duty of care befell on the party responsible for the care, 2) the applicable standard of care was violated, 3) the injury suffered is eligible for compensation, and 4) an injury was actually caused, and it’s the result of the conduct in question.
Medical negligence claims in the UK do not only arise in the hospital environment. Any medical practitioner who breaches their “duty of care” and demonstrates a poor professional performance (either through a lack of skill or the ability to use that skill) can be liable for an injury or loss which results in a medical negligence claim in the UK. This therefore can include dentists, chiropractors, midwives and plastic surgeons.
In State run facilities it is typically the physicians´ employers, rather than the individual doctor who is considered to hold the duty of care to patients. This is the case within the National Health Service (NHS), for example. When a lawsuit occurs, National Health Service Trusts and Health Authorities are the parties which are liable to be sued, as opposed to individual physicians, nurses, or technicians. In effect, compensation is to be retrieved from these NHS Trusts in instances of medical negligence. The NHS Litigation Authority reported 6,652 medical negligence claims in the UK during 2009/2010, which is an increase from its 2008/09 figures.
What’s the law concerning medical negligence cases?
The issue of medical liability in England and Wales operates under the law of tort. When you make a medical negligence claim in the UK, you would be pursuing compensation in a malpractice lawsuit. The majority of cases are settled out of court.
What can I expect for compensation?
This is a difficult question to answer as each case is different. What you would be pursuing is compensation for injuries sustained; as such, the rules of personal injury also apply to those of medical negligence. That is, compensation is evaluated in terms of the injury itself in relation to the degree of negligence in causing the injury.
The crucial point to consider is that in order to pursue a medical negligence claim in the UK is that an actual injury must have been sustained or there must have been deterioration in an existing condition which could have been avoided “in the circumstances and at the time”. The injury could be either physical or psychological. So-called near misses do not count, as the compensation you would be pursuing is for the injury and its detrimental effect on your life — not the negligence in itself. In other words, the compensation is for the harm as caused by the negligence.
When you seek compensation for the injury, your solicitor will likely pursue both ‘general damages’ and ‘special damages’. General damages relate to the physical and psychological aspects of the injury: the pain and suffering. Special damages apply to the actual financial burden the injury has caused — such as the costs of recovery, travel, and loss of earnings (present and future).
In total, the NHS Litigation Authority reported £787 million awarded for clinical negligence claims during the period of 2009/2010.
If you have been harmed as a result of medical negligence, we highly recommend that you speak to a qualified solicitor about making a medical negligence claim in the UK. When you call our free advice service (or fill out our form to get a call back), you will be discussing you particular circumstances directly with a solicitor who can clarify your concerns — with no obligation from you and with complete confidentiality.
Controversy around medical negligence claims in the UK
There has been much controversy around the subject of medical negligence. The medical establishment have contended, for example, that the prevalence of medical negligence claims has made doctors wary of trying innovative approaches that could further medical progress and eventually save lives in an effort to play safe to avoid potentially being sued, and that the cost of insurance premiums have risen a result of claims.
On the other side of the debate, patient advocate groups attest that negligence claims are a way to ensure that the medical establishment is held accountable for the standard of care it oversees, and that reform in the way claims are managed by the medical establishment is needed.
The Department of Health tended to agree with the latter sentiment. A 2003 review by the Department of Health outlined extensive flaws in the way medical negligence cases are handled. For example, cases can take a long time, incurring a great deal of expense. Denial of liability and cost-cutting tactics on the part of those being sued was also viewed as an impediment to a swift and effective procedure.
The Department of Health has since published additional recommendations for best practices in negligence prevention, and for professional regulation reform.
The Bolam Test and subsequent amendments
There is a good degree of protection provided by law for medical professionals — take for example, the fact that it is difficult to prove negligence when it is established that the sued party acted in accordance to the generally accepted practices of their profession.
This is known as the ‘Bolam test’, which has been applied to medical negligence cases since the 1950s following the Bolam proceedings. For many years, this test alone made it very difficult to prove negligence, so an amendment in the 1990s made it possible for a judge to decide that a medical decision that does not hold up logically can be considered negligent.
Seek professional legal advice about making a medical negligence claim in the UK
Contact our free advice service to learn more about making a medical negligence claim in the UK. Because of the nature of medical negligence cases, its intricacies are best explained by an expert in the legal field. Thereafter, should you wish to proceed with a claim, we can direct you the appropriate course of action.