Can I make a claim for clinical negligence?
Written by Rebecca Brisley | Medical Negligence Team |20 October 2023
When considering whether you are able to make a claim for clinical negligence, it is always important to contact a specialist lawyer who should, in the first instance, let you know whether your enquiry relates to poor medical care, or whether there has potentially been a negligent act or omission.
Clinical negligence can take many forms, including:
Surgical error
Delayed diagnosis or misdiagnosis
A failure to obtain informed consent before embarking on a course of treatment
Negligent care from a GP
Birth injuries which can include trauma and injury to mum and / or baby during pregnancy or birth and beyond
Whilst it is important to remember that we are lawyers, and not medical practitioners, an experienced clinical negligence lawyer will have the necessary experience to talk you through events, take a good history, then, if necessary, go away and research the issues raised and possibly even be able to discuss on an ‘off the record’ basis with a medical expert.
In any clinical negligence claim you must prove the following:
that there has been a breach of duty of care and;
that breach of duty has caused you an additional injury, i.e. you are now in a worse position than you would have been but for the negligent treatment
The second stage of the above test is often the most difficult to prove. You might be surprised to learn, as an example, that when assessing delayed diagnosis of cancer cases, we would often look for a delay of more than 3 months before being able to further investigations.
What will happen if my Solicitor thinks I have a claim?
Once funding for your claim has been established and agreed (normally under a no win, no fee agreement), your Solicitor will gather your medical records, if they have not already done so.
Depending on the size of your records, your Solicitor may send them off to a specialist pagination agency to sort, paginate and index them into an easy to read bundle of documents and will thereafter research an appropriate medical expert to instruct.
Medical Expert Reports
Your Solicitor will then decide whether to instruct an expert on the issue of breach of duty or causation, or possibly both. This expert will be completely independent and will likely never have had any contact with the client or their medical treatment. The expert will also confirm that they do not have any conflict of interest and that they are able to provide an independent opinion.
There is a specific test called the ‘Bolam Test’, which experts will consider when preparing their reports. The test was set out in a case from 1957 where the judge said this:
“I myself would prefer to put it this way, that he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. I do not think there is much difference in sense. It is just a different way of expressing the same thought. Putting it the other way around, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion.”
This test has been developed over the years. One of the major developments was the Bolitho principle. In simple terms what this means is that if a doctor alleges that he was acting in accordance with a body of medical opinion that opinion has to be reasonable, responsible, respectable and withstand logical analysis.
The expert will confirm, on the basis of this test, whether or not any negligence has occurred and, if so, whether the negligent act or omission has caused an ‘injury’.
What next?
If we are satisfied that both breach of duty and causation of injury have occurred, we will then make contact with the relevant Defendant with a Letter of Claim. This is their first formal communication that confirms that a claim is being alleged against them.
The Defendant will then, under the relevant Protocol, be allowed a period of 4 months in which to investigate the allegations put to them and, thereafter, confirm their position in respect of liability.
What happens later in the claim will then largely depend on whether the Defendant accepts that a breach of duty has occurred and your Solicitor will advise you accordingly.
If you, or a loved one, have been seriously injured as a result of medical negligence then you may be able to claim compensation. There is a 3 year time limit for making a compensation claim so you should ensure not to leave it too late before seeking advice.
For a free no obligation chat to discuss whether you have a claim on a no win no fee basis, you can contact our experienced Personal Injury Team by calling 01752 827085 or emailing enquiries@nash.co.uk.
