This medical negligence compensation guide provides information about what is considered to be medical negligence in the UK, and how you may be able to make medical negligence claims for compensation should you suffer a loss, an injury or the avoidable deterioration of an existing condition which can be attributed to an “unacceptable standard of care” by a medical professional, a medical facility or an agent of a medical facility.
Each medical practitioner, facility or agent of a facility owes a “duty of care” to patients irrespective of whether the practitioner works in a hospital, in a clinic or in a home healthcare environment. Since medical negligence is not only restricted to the hospital environment, any medical practitioner who breaches this implicit “duty of care” becomes liable when an accident, error, or mistreatment occurs which indicates a substandard professional performance which may be either due to lack of skill, or the inability to demonstrate that skill.
Examples of Medical Negligence Compensation Claims
The information provided in this medical negligence compensation guide is intended to be non-specific as no two medical negligence compensation claims are identical – not matter similar the injuries sustained. However, we would like to provide a few examples of certain medical negligence compensation claims to demonstrate what constitutes medical negligence and in what circumstances compensation for medical negligence can be claimed.
This list is not exhaustive; and therefore if you have suffered a loss, an injury or the deterioration of an existing condition which you consider may be attributable to an “unacceptable standard of care”, you are advised to discuss the circumstances of the treatment you received with a medical negligence solicitor at the earliest possible opportunity.
Medical Negligence Claims for Birth Injuries
It is possible to make medical negligence claims for birth injuries for an unacceptable standard of care before, during or after the delivery of your child. Furthermore, the birth injuries do not necessarily have to have been sustained by the child, for it is quite common for a mother to be injured during the delivery process – although a mother will only be eligible to claim compensation for medical negligence if it can be demonstrated that the injuries were avoidable “in the circumstances and at the time”.
Children´s medical negligence claims for birth injuries are made on their behalf by a parent or guardian, who must be appointed as a “litigation friend” by the courts. Your solicitor will be able to give you further information on being accepted as a litigation friend and what your responsibilities are in the following medical negligence claims for birth injuries:
- Maternal or Gestational Diabetes which has not been identified during pregnancy
- The misdiagnosis of pre-eclampsia or failure to monitor your unborn child
- The failure to identify and treat Placental Abruption or Uterine Rupture
- Incorrect Episiotomy Procedure and second or third degree tears
- Scarring or nerve damage due to the incorrect use of forceps
- Cerebral Palsy when a child has been starved of oxygen in the womb
- Erb´s Palsy/Brachial Plexus Injury due to nerve damage during delivery
Medical Negligence Claims for Hospital Negligence
Medical negligence claims for hospital negligence can result from a number of scenarios in which an unacceptable standard of care has been provided; however, in order for hospital medical negligence claims to be successful, it has to be shown that a loss, an injury, or the avoidable deterioration of an existing condition has resulted from the lack of care you received.
Conversely, it may be the case that you have sustained an injury during a medical procedure in a hospital: however, all medical procedures carry some level of risk, and it may be the case that the injury you sustained was unavoidable “in the circumstances and at the time”. You should seek professional legal advice if you have experienced a “negative event” in any of the following situations:
- An existing condition had deteriorated due to a failure to treat
- An existing condition has deteriorated due to an avoidable delay in the delivery of test results
- You have sustained an illness due to a hospital infection such as MRSA
- You developed bedsores due to a lack of nursing care
- You sustained an injury due to an unsupervised fall in the shower/on a ward
- An illness was misdiagnosed or diagnosed far later than would be generally acceptable
- You suffered a loss or injury due to a failure of follow-up care
Medical Negligence Claims for Surgical Negligence
Medical negligence claims for surgical negligence can be among the most complex claims for hospital negligence to resolve successfully. There are dozens of procedures involved before, during and after surgery in which an error could occur, and claims for surgical negligence compensation not only have to establish that an avoidable injury has occurred, but where in the process the negligence took place.
For example, the negligent party in a compensation claim for wrong site surgery is unlikely to be the surgeon who performed the procedure, as he or she would have been guided by the notes they were provided with and other members of the surgical team. It may also be the case that negligence has undoubtedly occurred – for example when a swab is left inside a patient after a medical procedure – but unless the negligent act has resulted in an injury being sustained, medical negligence claims for surgical negligence will ultimately be unsuccessful.
Other complex areas in which it may be possible to make compensation claims for surgical negligence include:
- Failure to assess a patient´s heart and lung function prior to surgery
- Anaesthetic awareness should you experience pain during a surgical procedure
- Being given a contaminated blood transfusion during an operation
- Failure to deal with complications during a surgical procedure
- A surgical procedure being performed unnecessarily
- A surgeon piercing a bladder or other organ during surgery
- Lack of vigilance by nursing staff during post-operative care
Medical Negligence Claims for Plastic Surgery Gone Wrong
Cosmetic surgeons are also medical practitioners and have to provide the same level of care as you would expect from a surgeon in a hospital. If a cosmetic surgeon has made an error due to a lack of care – or, in some cases, has failed to deliver the results that were promised to you – it may be possible to make medical negligence claims for plastic surgery gone wrong.
It is important to note that not all injuries attributable to cosmetic surgery procedures are classified as medical negligence. If – for example – you were to suffer an injury due to a faulty breast implant, it may be the manufacturers of the implant (or their public liability insurers) who would be responsible for setting compensation claims for plastic surgery gone wrong. Examples of medical negligence claims for plastic surgery gone wrong would include:
- Negligent eye laser surgery
- Avoidable nerve damage during plastic surgery
- Liposuction errors
- Excessive scarring as a result of negligent cosmetic surgery
- Facial scar revision surgery gone wrong
- Infections which develop after plastic surgery
- Nasal collapse after rhinoplasty surgery
Medical Negligence Claims for Dentist Malpractice
Dentists, orthodontists and dental hygienists are also categorised as medical practitioners, and whether they are located in a public hospital or in a private surgery are subject to the same duty of care as surgeons and doctors. Like surgeons and doctors however, an injury sustained in dental surgery might not necessarily be the fault of the dentist performing the procedure.
A dental nurse, technician or dental therapist may be the negligent party in a dentist malpractice compensation claim, and – as agents of the dental practice – your solicitor would still have to go through all the procedures for making medical negligence claims for dentist malpractice as if the dentist themselves had caused your injury. Scenarios in which compensation claims for dentist malpractice are most likely to succeed include:
- The extraction of the wrong tooth
- Long term nerve damage of the tongue
- When your dentist has failed to identify an oral infection
- An injury to the lips due to excessive force
- Damage to the jaw due to the incorrect administration of an injection
- Anaesthetic awareness during a dental procedure
- Negligent fitting of a brace by an orthodontist
Medical Negligence Claims for Medication Errors
Medical negligence claims for medication errors can occur as the result of a lack of care inside a hospital – for example if a nurse administers an incorrect dosage of a medication – when a GP writes an incorrect prescription, or a pharmacist dispenses the wrong medication, due to which you suffer an adverse reaction.
Compensation claims for medication errors outside of a hospital are often difficult to resolve successfully, as the defence against such claims is that you also had a duty of care to check what was being prescribed/dispensed for you; and that, as soon as you had suffered an adverse reaction, you should have returned to your doctor before the condition deteriorated into something more serious.
Scenarios in which medical negligence claims for medication errors have a greater likelihood of success include:
- Being prescribed a medicine for too long
- Being prescribed the wrong dosage of medication
- Being prescribed a medicine which reacts with medication you are already taking
- Being prescribed two or more medicines which react with each other
- Being prescribed a medicine to which you have a known allergic reaction
As mentioned above, medical practitioners are not only professionally but also legally accountable for their “duty of care” toward patients. In effect, this is a duty to prevent avoidable harm — either by performing an act, failing to perform it, or making an error that adversely affects the patient. As such, medical negligence is always viewed in direct relation to this breach of duty when an injury or loss results, so that when a loss or injury occurs, the practitioner — whether it is a dentist, chiropractor, general practitioner, midwife, or surgeon — is legally liable for providing medical negligence compensation to victims.
Medical Negligence Compensation
While it is not easy to estimate the medical negligence compensation you may be entitled to without first assessing you individual circumstances, what you are pursuing is a claim for loss or injuries sustained. Because of this, the rules of personal injury compensation also apply to medical negligence compensation, so that any compensation you receive is evaluated in relation to the injury or loss in connection to the degree of negligence that is attributable to the negligent party.
An Injury Must Have Occurred and Not Just Negligence
The main factor to consider when making a claim for medical negligence compensation is that an actual injury must have been sustained — or an existing condition must have worsened as a result of negligence, which could have been otherwise avoided “in the circumstances at the time”. The injury you are pursuing medical negligence compensation for can be physical and/or psychological; however, ‘near misses’ are not eligible for compensation — even if the practitioner has acted grossly negligent in their care or practices toward you. In other words, what you are pursuing is medical negligence compensation for the adverse effects on your life, or the life of a loved one, as a result of the injury which was caused by negligence, and not the negligence itself.
Proving Medical Negligence
It must be noted that it is not always a straightforward matter to prove medical negligence, as a number of medical practitioners could have been involved in the process (or lack of a process) which resulted in your injury. The burden of proof is on the claimant (the person making the claim) to prove that a duty of care fell on the party being sued; that the standard of care was breached and this breach resulted in the injury for which you are seeking medical negligence compensation.
In order to do this, your solicitor will recruit an expert medical witness who will demonstrate that “on the balance of probability” medical negligence occurred which resulted in a loss or injury, which was avoidable under the circumstance at that time, and which displayed a substandard professional performance. As mentioned above, the individual who caused the loss or injury could be one of a number of medical practitioners or support staff, and claims for medical negligence compensation can often be lengthy procedures.
In facilities that are run by the state, it is usually the physician’s employers as opposed to the individual doctor or practitioner who holds the duty of care to patients — i.e. the National Health Service (NHS) — so that when a lawsuit occurs, National Health Service Trusts and Health Authorities are the ones who are liable. As such, medical negligence compensation is retrievable directly from these NHS Trusts. In private practice, different rules apply, and the liable party may be an individual practitioner or practise — all of which are required to have medical insurance in the event of a medical negligence compensation claim.
Types of Medical Negligence Compensation
When you seek medical negligence compensation for a sustained injury, your solicitor may pursue both general damages for pain and suffering (and its adverse effects on your life physically and psychologically), as well as special damages which addresses actual financial losses resulting from the injury. Special damages cover the costs of treatment, travel, loss of earnings (present and in the foreseeable future), as well as any other expenses which are directly associated with your injury. For example, if you need to hire a caretaker, this expense can be claimed as part of your medical negligence compensation settlement. Furthermore, your solicitor may also pursue medical negligence compensation for “loss of amenity” which addresses the injury’s effect on your quality of life.
Seek Legal Advice at the Earliest Possible Opportunity
If you are considering making a medical negligence compensation claim against a medical practitioner, we encourage you to seek the counsel of a legal professional to discuss the circumstances surrounding your potential claim. We have established a freephone legal advice service which enables you to connect directly with an experienced solicitor who can act as you medical negligence compensation guide. We offer impartial, practical advice with no obligation on you to proceed with a medical negligence compensation claim if you choose not to once you are aware of all the facts. Rather, our intention is to thoroughly inform you of your entitlement to medical negligence compensation with relevance to your particular situation, in order that you can make an educated decision about whether you have a medical negligence compensation claim which is worth your while to pursue.