What is clinical negligence?

Fortunately, most medical procedures are undertaken with no problems by doctors and staff who are well-trained and practice to high standards. But occasionally a mistake might be made by someone responsible for your care which might cause you harm. Examples of where negligent medical treatment may happen include:

• Surgical errors that cause internal injuries, infections or excessive scarring
• Not telling you the risks involved with a procedure
• Failing to get full, informed consent for an operation
• Delay in diagnosing an illness or other medical problem
• Misdiagnosis of a condition
• Given prescriptions for incorrect medication

Whilst these mistakes are unlikely to have happened recklessly, they can still have a huge impact on your quality of life. Health professionals, particularly doctors, dentists, midwives and ophthalmologist are highly trained and a high standard of care is expected of them.

If you have been negligently treated and suffered as a direct result, you could claim personal injury compensation. You can talk to a trained legal adviser for free advice on 0800 234 6438 or you can fill in this online claim form to arrange for them to call you back.

Whether you’re making a claim against an NHS doctor or practitioner, or a doctor or other health professional working in private practice, the essential elements of your claim will be the same. Avoidable mistakes were made, causing you physical harm – and you shouldn’t be left bearing the physical and emotional cost.

Clinical negligence claims can be made against all types of medical and health professionals and workers, such as:

• GPs or doctors
• Hospital staff – including surgeons, nurses and porters
• Dentists
• Optician
• Physiotherapists
• Cosmetic surgeons

In many cases, it will be clear which individual/s should be held responsible for medical negligence. However, a patient’s treatment is often the culmination of decisions made by a team of medics, for instance orthopaedics or oncologists and anaesthetists.

In these cases, it could be more challenging to determine the exact cause of the negligence – your injury might be the result of failings in wider processes rather than the actions or inactions of one person. In these types of situation, solicitors may bring a claim against individuals as well as a hospital management team and or the NHS trust.

Though claims may be made against individual health professionals, the practitioner will in fact have insurance to cover the risk of injury claims. They will be covered by ‘indemnity insurance’ which is a legal requirement under Health Care and Associated Professions (Indemnity Arrangements) Order 2014.

At a time when the NHS is under huge financial pressure, clinical negligence claims are costing the NHS billions of pounds. Whilst the vast majority of NHS doctors and other health professionals maintain a consistently high standard of patient care, some level of human error is inevitable.

However, where negligence occurs and causes the patient harm, the law steps in to enable the victim to claim compensation from those responsible.

NHS claims are dealt with differently to other medical negligence claims involving private settings, given that the NHS is controlled by the government.

The NHS has its own health authority for conducting litigation, called NHS Resolution. This is an independent organisation funded by the government’s health department and deals with any claims made against the NHS.

Patients also have rights under the NHS’s written constitution. This outlines the right of any patient to complain; to have their complaint dealt with efficiently; to be told about the findings of any investigation into their complaint; and to receive compensation where it is determined that they’ve been treated negligently.

Alongside this, patients also have the right to bring a civil action for personal injury compensation for medical negligence. Where an individual believes they have suffered physical and or mental harm as a result of negligence on the part of an NHS doctor or other health professional, they can make a formal claim in the same way as any other injury claim.

The compensation claim will usually be made against the NHS trust concerned (referred to in the case as the ‘defendant’). The NHS trust may admit liability and agree to settle the claim, avoiding the need to go to a court hearing. In other cases, the NHS trust may admit liability but the level of damages cannot be agreed – in which case, the court may have to rule on the appropriate amount of compensation.

Where liability is not accepted, proceedings will become necessary but it still be settled at any time before a final hearing. Reassuringly, few medical negligence cases reach a final hearing.

Your solicitor will ask you for detailed information about your treatment and the harm you’ve suffered. They can then start to build a strong case to prove that clinical negligence occurred, and that this resulted in physical and/mental harm to you.

To help your solicitor collate the evidence needed to prove your case, there are several pieces of information you can provide them with, including:

• Photographs of any physical injuries you have suffered
• A written account, such as diary or journal, of what has happened to you, your recovery and how it has affected you
• Keep receipts of any expenses you’ve had to pay out because of your injuries (eg. travel to and from hospital, private corrective healthcare, medication costs, etc)
• Any records of the treatment you received that led to the clinical negligence

Your solicitor will use this information to build a clinical negligence claim. To win your claim, they will need to help you prove on balance that there was a breach of duty of care towards you and this caused you harm.

Your solicitor will have to demonstrate that you did not receive the standard of care you would have expected to receive from a reasonably competent, skilled specialist in that area. This means proving that the care you did receive fell below a reasonable standard.

A high standard is expected of health professionals and the very fact a mistake was made may in itself indicate there was a breach of duty. For example, a surgeon may remove the wrong leg or the wrong ovary, when it was clear from the medical notes and consent forms that the other should have been removed.

In other cases, a doctor may breach their duty of care by failing to inform the patient of the risks of a planned procedure, which then goes ahead. If the claimant suffers harm as a result of the procedure – a successful clinical negligence claim could follow on the basis that ‘informed consent’ was not given. Had the risks been fully explained beforehand – a claim would be unlikely to succeed.

However, if the treatment or practice you have complained of is generally accepted as normal practice by other, similar health professionals, a claim is unlikely to succeed.

Other factors to bear in mind include the fact that misdiagnosis does not necessarily equate to clinical negligence. No doctor can guarantee a successful outcome; medicine is not an exact science; and individual patients can present varying physiological reactions to drugs and procedures. In short, when things go wrong, it does not necessarily mean a health professional was negligent.

On the other hand, where a doctor deviates from accepted practice or procedure without good reason, and fails to exercise the duty of care and skill expected from a reasonable professional in the same position, it could lead to clinical negligence.

This is known as causation. Proving a personal injury claim, including clinical negligence, requires proving on balance that the treatment provided (or the doctor’s failure) was in breach of their duty of care to you – and that this directly caused your injury or condition (or made it worse).

Causation means that there must be a clear link established between the negligence and the harm suffered by the patient. If this link is missing, the claim will fail.

To help prove your medical negligence claim, you’ll need to be examined by an appropriate expert clinician or health professional. Depending on the background to your claim, this could be, e.g. an orthopaedic surgeon, an eye specialist, an experienced physiotherapist or ear, nose and throat (ENT) specialist.

Once you’ve been assessed, the expert will write an expert report on the extent of your injuries, your prognosis and whether you may need further treatment or therapies. This will enable your solicitor to assess the level of compensation you deserve.

Your solicitor will arrange the medical assessment for you and talk you through the process, so there’s no need to worry. And the cost of it will be covered by your no win no fee agreement.

If you think you may have suffered negligent treatment while under the care of a medical or healthcare professional, it can be hard to come to terms with the reality that someone you have trusted with your health has caused you harm. It’s understandable to feel that because of the size of the NHS, there’s nothing you can do about it.

However, there are routes you can take to get your voice heard in additional to making an injury compensation claim. Importantly, the NHS has its own complaints procedure which allows anyone who has suffered an injury to complain formally about their treatment.

Then there is NHS Resolution, the independent body which deals with claims made against the NHS. NHS Resolution, which settled more than 3 in 4 claims in the year to 2022 without court proceedings. It tries to settle claims within 12 months, but it can take much longer, especially if negligence is denied or there has been a substantial delay in making the complaint.

Asking the NHS to review your negligent treatment can be a useful way of unearthing what happened, giving you stronger evidence to support a clinical negligence case.

This is where the expert medical reports become particularly important. Your clinical negligence solicitor will ensure you are examined by the most appropriate medical expert who will assess your injuries and your recovery.

If your solicitors take the view, in light of the medical report, that on the balance of probabilities the medical professional in question was responsible for the harm you suffered, you’ll can continue building your compensation claim.

Claiming compensation isn’t a case of ‘punishing’ the medical practitioner (in any event, their insurer would make the payout, not the individual concerned). The purpose of compensation is to give recognition to the suffering you’ve gone through, to make sure you’re not financially worse off through no fault of your own – and to send a wider message that the highest possible standards of care in medical practice should be maintained.

Compensation for personal injuries comprises ‘general damages’ (an amount to compensate you for your pain, suffering and loss of amenity, and consequential loss of future earnings); and ‘special damages’ to compensate you for any financial losses you suffer as a direct result of your injuries.

The more serious the injury, the more general damages you will receive – and it becomes increasingly challenging to calculate how much compensation you deserve. For instance, in the case of catastrophic injuries where you or your loved one has suffered permanent damage, it is very difficult assess the ‘value’ of the injury until it becomes clear what the prognosis is and full medical evidence is obtained.

There is no definitive tariff for valuing a claim, but there are important and very useful judicial guidelines that help lawyers and the courts calculate fair injury awards. When referring to the guidelines, they will take into account various factors including:

• The kind of injury and the severity
• Whether there is lasting or permanent disability
• The amount of pain and suffering which the patient has had to endure
• Loss of amenity (loss of enjoyment and the ability to engage in activities which were enjoyed prior to the injury suffered)
• Loss of earnings (including loss of future earnings)

Your lawyers will then attempt to negotiate your compensation with the other side.

In some cases, while your claim is being negotiated you might be able to receive an interim compensation payment if you have immediate financial needs. This could, for example, be urgent medical treatment or alterations at home to enable you to leave hospital.

However, interim payments can only be made if liability is accepted. Your solicitor will work hard to agree to an early payment with the other side to allow you to start rebuilding your life while the full amount of your compensation is still being negotiated.

Fortunately, it’s unlikely you’ll need to go to court when you make a claim for clinical negligence – most claims are settled out of court (even if it’s at the last minute).

However, certain standards set by what’s known as the Pre-Action Protocol for the Resolution of Clinical Disputes should be followed by lawyers. This includes information sharing and cooperation, and if expectations are not followed – your claim may reach the court, and the judge could take into account any failings when considering the issue of costs.

The Protocol specifies time limits for the exchange of information between lawyers and encourages early medical or rehabilitation treatment to help the person affected by negligent medical treatment. It also encourages all parties involved in the claim to find alternatives to going to court, such as agreeing an early settlement outside of court.

In the most serious (often fatal) cases, a negligent act or omission can amount to a criminal offence. As well as a medical negligence compensation claim, potential criminal prosecutions could follow where a healthcare professional is suspected of gross negligence manslaughter or has intended to harm or assault a patient.

In a recent high profile case, for instance, an optometrist was convicted of manslaughter after an 8-year-old boy died following a routine eye test – the optometrist failed to spot a life-threatening medical condition.

In criminal proceedings, the jury would have to be satisfied beyond reasonable doubt that the breach of care by the doctor (or other healthcare professional) was so grossly negligence that they should be held criminally responsible.

Sometimes, an error is made in treatment but, thankfully, minimal or no physical harm was caused. Where an error was made but no clinical negligence will follow, you may still want to formally complain about the poor or unprofessional service.

There are NHS complaints procedures in place to assist you in bringing your grievance to light. It is often best to compile a written complaint and send it directly to the relevant NHS entity, along with any evidence you may have; or to your local Primary Care Trust (PCT).

If the matter is not dealt with to your satisfaction, you can take it further by making a complaint to the Health Service Ombudsman.

See the more comprehensive article entitled: the NHS complaints procedure.

If you’ve been unfortunate enough to have paid for private medical treatment or cosmetic surgery, and you’ve suffered harm as a result of negligence, you may be considering how to claim compensation.

The process is similar to making a claim against the NHS, except there will be no NHS resolution body involved. Clinical negligence claims can be brought directly against private providers of medical treatment, sometimes against the individual concerned (though for all intents and purposes, it will be against the insurance company).

Your solicitor will need to prove medical negligence in the same way as if the claim is against an NHS doctor or trust.

As soon as you can, contact a trained legal adviser for a free initial chat about what you’ve experienced. Once they consider you have grounds to make a medical negligence claim, they will partner you with an experienced personal injury solicitor who can take full details and start your claim against the NHS trust, private healthcare setting or individuals concerned.

They will conduct your claim on your behalf and guide you through every step. Call now for free on 0800 234 6438 or you can fill in this online claim form to arrange for them to call you back.