Clinical Negligence explained
Clinical Negligence explained without (too much) legal language.
Clinical negligence claims can often be very complex claims requiring evidence from numerous medical experts. They are different to “accident” personal injury claims as the Claimant is already suffering from some condition which brought about the need for medical treatment in the first place.
Here I will try to explain the principles behind bringing a clinical negligence claim in a simplified way without referring to often complicated legal references.
The first thing to remember is to act quickly. There is a 3 year time limit for bringing clinical negligence claims to Court. This time runs from the date of negligence or the date when you knew or ought to have known that you had suffered significant injuries as a result of negligent treatment. It may seem like you have a long time but as you will see there are a lot of steps to be taken to prepare your potential claim.
When bringing a successful claim, the first thing that a Claimant must prove/establish? is that they have been provided with negligent medical treatment. Often there can be numerous Defendants to a potential claim with the treatment provided by each Defendant having to be individually investigated.
Sometimes proving negligence can be easy. An obvious (but thankfully not very common) example of this would be if a surgeon cuts off an incorrect leg or equipment is left in a patient during surgery. However, sometimes establishing you have received negligent treatment can be much more difficult.
Unfortunately, sometimes problems occur through no fault of a doctor. Patients can sometimes suffer from significant complications during treatment which are recognised risks of that treatment. If they have been fully informed of the risks of such complications arising prior to the treatment the patient will not be automatically entitled to compensation, no matter how significant and life changing those complications are.
To establish that there has been negligent treatment a Claimant must prove that the actions taken by the doctor were so wrong that no reasonable body of doctors with similar qualifications would have acted as the treating doctor did in the Claimant’s case. It may seem harsh, but it is not enough to show that only some doctors would have acted differently to the doctor treating the Claimant.
Once you get over the hurdle of establishing that there has been negligent treatment a Claimant must be able to prove that this treatment has led to a worsening of their injuries. No matter how significant the negligent treatment was a Claimant will not be entitled to recover any compensation unless they can show that the negligent treatment led to additional injuries being caused. This can sometimes be very upsetting for Claimant’s and their families when they are advised that even though there has been negligent treatment there was nothing which could have been done to avoid the outcome even if the correct? treatment had been provided, especially when injuries have led to death or significant disability.
On many occasions the negligent treatment has led to a worsening of symptoms for the Claimant, but it can be extremely difficult to prove the extent of these aggravated injuries. It is therefore vital that your solicitor instructs the best experienced medical experts to consider this position on your behalf.
Your solicitor’s job, with the assistance of the medical experts, it to establish what the position would have been had you received non-negligent treatment (What would the doctor have done? What difference would this have made? Would a full recovery have been made? How long would this have taken?) and then to compare this position with what the actual outcome is following the negligent treatment.
Whilst many clients only wish is to be put back in the position they were in prior to the negligent treatment, unfortunately this is not possible. Your solicitor’s job is to recover as much compensation for you as possible to reflect the additional pain and suffering and financial losses suffered to hopefully lessen the pain caused to you and provide you and your family with the best quality of life when the injuries suffered are significant.
Some of the losses are obvious, for example, loss of earnings for any other additional time off work as a result of the negligent treatment and medication, but there may be other losses that you are entitled to, especially when you have suffered significant life changing injuries as a result of the negligent treatment you have received.
It would take too long to list all the potential heads of loss which can be claimed but to give you an idea claims can be made for things such as loss of future earnings, the need for future treatment and care and assistance, the cost of prosthetic limbs or aids and equipment and the possible requirement for adapted vehicles or accommodation.
Again, as with establishing that there has been negligent treatment and what the consequences of that treatment are, It is vital that when considering these losses that you have a team consisting of the best experts in their fields to ensure that maximum compensation is recovered.
Please contact the Clinical Negligence Department at Clear Law should you wish to obtain some initial free advice if you think that you have received negligent treatment in the past 3 years.
Andrew Yaw is a Solicitor with 19 years post qualification experience in civil litigation.