Understanding Medical Negligence

In order to make a successful claim for medical negligence (also known as clinical negligence), it is necessary to prove three things. Namely:

1. That the health professional was negligent. This means that they acted in a way that no other reasonable and responsible health professional of the same specialty would have done.

For example, a GP must act as a reasonable and responsible GP would have done in the same circumstances, and not as a Hospital Consultant would have done. This is known as “breach of duty of care”. It is the first limb of the medical negligence test.

Not all mistakes qualify as a breach of duty of care. For example, the mistake made could be excusable and one which other health professionals may have made in the same circumstances.

To establish a breach of duty of care, an independent expert of the same specialty as the treating health professional must report that the mistake made was so unreasonable as to amount to negligence.

2. That the negligence directly caused or contributed to the problems the patient has experienced (on a balance of probabilities). The patient must have suffered symptoms or injuries over and above what they would have experienced had the health professional not treated them negligently. This is known as “causation”.

It can be very difficult to understand that even if a health professional has made a negligent mistake, a patient may not win a claim for compensation. A claim for compensation is only successful if the negligent mistake has resulted in a patient experiencing more pain and/or a worse long-term outcome than they would have done had the negligence not occurred.

3. That the damage which the patient sustained is sufficiently serious in terms of the compensation it would attract to justify embarking on the compensation claim in the first place.

The government has put severe limits on claims of a lower value, and solicitors no longer get paid for their work on helping win those claims. This means that patients with lower value claims are now forced to pursue their claims without help from solicitors, or not pursue them at all.

People generally have three years from the date of the negligent treatment to start court proceedings in a claim, or 3 years from the date they became aware that negligent treatment may have caused an injury. There are different rules for children under 18 and for those people who do not have capacity.

Claims for negligent treatment of any kind can be made against dentists, opticians, physiotherapists, cosmetic surgeons, pharmacists and nursing homes.

If you are unhappy with any kind of treatment you have received from an NHS hospital or GP, then you are able to make a complaint to them and seek a reply. For more information, visit our hospital negligence claims page. If you have any concerns about the treatment you have received, please contact our clinical negligence team and discuss how we can help you.

No. The clinical negligence team at Oliver & Co offer funding by way of a ‘no-win, no fee’ agreement, which means you are not asked to make any upfront payment. If the claim is successful you will then get at least 75% of any compensation won, and if the claim is unsuccessful, you don’t pay anything.

Medical negligence claims, depending on their complexity, usually take between 18-36 months to settle, and longer if the defendant clinician is denying they provided negligent care or the court process has to be started. Fortunately, even if we have to start court proceedings, it is extremely rare that a case goes to trial. Instead, the vast majority of our cases settle before trial, meaning our clients do not have to go to court at all.

Please contact us for advice if you feel you have suffered any form of medical negligence. We will be able to give you free initial advice regarding whether or not you have a claim. Please note that there are strict time limits in place for making a claim for compensation, but our specialist medical negligence solicitors will be able to advise you specifically on the facts of your own case.