The Medical Negligence Claim Process – An Expert Overview

Making a medical negligence claim is a serious matter. Individuals who want to make a claim have often been affected severely and require a lot of support to get back to normal life, if at all. If a person passes away as a result of medical negligence, their family have to live through the trauma and hardship caused by the bereavement.

There is also the emotional factor of bringing a claim against a medical entity, be it your local GP, the NHS or a private doctor. There is a prevalent feeling that bringing a claim against a medical professional is unethical or immoral. However, this is not how medical negligence claims should be looked at. Medical professionals have a duty of care towards their patients. Failing to do so should result in action against them, which is why a medical negligence claim is the right thing to do.

Duty of care – The “duty of care” refers to the obligations, legal and  professional, placed on medical professionals to act towards others in a certain way and provide a service in accordance with set standards.

https://www.rcn.org.uk/get-help/rcn-advice/duty-of-care

What is required to make a negligence claim?

The primary document that is required to make a medical negligence claim is the medical record of the affected individual. It is fundamental to have complete medical records so that they can be reviewed by a Solicitor who has the expertise to understand them. The medical report helps in finding evidence that could be a basis for alleging a breach of duty.

How do you identify breach of duty? 

Breach of duty can be identified through assessment of medical records, which specifically outline failure or lack of adequate treatment by a medical professional. There has to be clear scientific evidence of negligence.

An example discussing a breach of duty

Person A passed away after fibroid removal, which is a common surgical process with low risk. Unfortunately, Person A’s condition worsened after surgery and they passed away within a week’s time.

The evidence summarised in the medical reports is that none of the doctors involved can explain what caused Person A to develop organ failure and sepsis.

The fact that the senior doctors who treated Person A cannot explain why their condition deteriorated so severely and so rapidly, does not mean that there was not a breach of duty. This is an important part of the medical negligence claim. It is important to have unrefuted evidence which points to breach of duty.

How would you identify breach of duty in such a case? 

In order to pursue a claim for clinical negligence against the medical entity, there has to be a starting point – for instance, if Person A’s pre-surgical medical condition presented some increased risk of a toxic reaction for example an adverse reaction to anaesthesia, or to any particular medication that was used in the uterine artery embolization (UAE) procedure intended to deal with the fibroids.  

Researching this matter can lead to clear evidence of breach of duty. This is where further medical reporting is required and this can be a costly exercise. 

If there is no ground to allege negligence based on first medical reports, a case on a No Win No Fee agreement. This change if there is evidence that supports an allegation of negligence.  

What compensation can you get for a medical negligence claim?

A medical negligence claim awards compensation for:

  • Pain;
  • Suffering;
  • Loss of income;
  • And expenses, if any.

It is also important to note that there are three elements to medical negligence compensation awards. These are: 

  1. General damages;
  2. Special damages for past losses;
  3. And special damages for future losses.
General damages in medical negligence

This is the awarded compensation for the injury itself, the pain and suffering experienced by the individual and the inability to live and enjoy life as they used to before the negligence occurred. 

The amount of compensation is assessed by the Court in accordance with an established formula. The total amount awarded depends on nature and seriousness of the injury.

Special damages for past losses in medical negligence

This is the awarded compensation for financial losses that the affected individual has incurred as a result of the negligence. 

This includes things like travel expenses for medical consultations and appointments, any equipment they had to buy, lost earnings if they have been unable to work and/or care given to them by family or friends.

Special damages for future losses in medical negligence

This is the awarded compensation to help the affected person get back in the position they would have been in if there had been no negligence. 

Financial support can help a person to a certain extent, by ensuring they have the means to pay for medical support, equipment, transport and any other expenses needed to live life as normally as possible. This would also take into account any future earning potential of the person, in case they are unable to work because of the medical negligence matter.

How long do you have to make a medical negligence claim?

There is a 3-year limitation period to commence Court proceedings for a medical negligence claim.

Once the Claim Form has been issued, you have 4 months to serve the proceedings.

The costs that need to incurred will be:

  • Issue protective proceedings;
  • Expert medical report;
  • Solicitor’s work;
  • Other disbursements – medical records fees (this should be free but may not be), coroner’s notes. 

Summarising the medical negligence process

  1. Obtain medical records, which need to be assessed by a Solicitor with a background in medical negligence.
  2. If there is no conclusive evidence in the reports provided by the relevant medical entity, using medical experts to consult and conduct an experiment.
  3. Compile the reports outlining the failure or negligence on part of the medical professionals.
  4. Draft and send a letter of claim to the Defendant.
  5. Value the claim based on general and special damages.
  6. Issue court proceedings.
  7. Use a Solicitor or Barrister for your case in trial and/or settlement.

If you have a medical negligence claim that you would like to discuss with us, please call us on 0207 790 7311 or email contact@freemanharris.co.uk.

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