Do I have a clinical negligence claim?

12 Aug 2020

If you believe that you have received incorrect medical treatment you may be wondering whether you are entitled to receive compensation. Laura Rowe from our Personal Injury team explains the circumstances in which a successful compensation claim may be brought.

Many clinical negligence claims are brought in the UK every year and the numbers are increasing year on year. The annual report issued by NHS Resolution on 16 July 2020 confirmed that the number of new clinical negligence claims and reported incidents to the NHS had increased from 10,684 in 2018/2019 to 11,682 in 2019/20. However, it is important for potential Claimants to appreciate that not all inappropriate treatment will necessarily lead to them being able to bring a successful compensation claim.

In order to bring a successful compensation claim arising from negligent medical treatment your potential claim will need to fulfil all of the following criteria:

1. Three Year Limitation Period

Pursuant to the Limitation Act 1980, the treatment about which you seek to complain must have been received within the last three years. In some circumstances it may be possible to successfully argue that the three year period does not start to run until later, the main example being if you did not know until later that your treatment may have been incorrect (your “date of knowledge”).

If you are under the age of 18, then the three year limitation period for your claim will not start to run until your 18th birthday.

If you lack legal capacity to bring a claim because of a mental disability, the three year limitation period for your claim will not start to run until you are no longer suffering from that disability.

2. Duty of Care

The potential Defendant to your claim must have owed you a duty of care. Hospitals, General Practitioners, Dentists and other medical professionals such as physiotherapists and chiropractors all owe their patients a duty of care to provide them with appropriate medical treatment. This applies whether the treatment you received was private or on the NHS.

3. Breach of Duty of Care

There must have been a breach of the duty of care. This means that the treatment you have received must have fallen below the standard of treatment that you were reasonably entitled to expect to receive in the same situation from a responsible body of medical professionals of the same specialism. This is called the Bolam test. An opinion from an independent medical expert will be needed to determine whether your claim can satisfy this criterion in the majority of cases.

You may already have received a second opinion on the treatment you received from another health care professional which could provide a good indication of whether an independent expert opinion might be supportive. For example, you may already have seen another Consultant at a different hospital for a second opinion on your injuries. Furthermore, if you have written a letter of complaint to the treatment provider you may have received a response which might either admit that the treatment you received was suboptimal or advise you that the treatment provider has taken action to put measures in place to ensure that similar events will not happen in the future.

All of the following are examples of situations in which there may have been a breach of duty of care:

  • An unreasonable delay in your treatment – such as a wait beyond 18 weeks between the date on which a non-urgent, routine referral to a Hospital Consultant from your GP is received at a Hospital and your appointment with the Hospital Consultant
  • A mistake made during surgery – for example inserting a wrongly sized replacement part during hip or knee surgery
  • An omission during surgery – for example failure to remove a surgical instrument from the surgical cavity during surgery
  • A misdiagnosis
  • A delay in diagnosis
  • Incorrect treatment – such as the prescription of the wrong medication
  • A failure to warn of material risks involved in a procedure and therefore to obtain your informed consent

4. Causation

In addition, the breach of duty of care has to have caused or materially contributed to your injury. It is not sufficient to prove only that there has been a breach of duty of care. You also have to be able to prove that the negligent treatment you received has made a difference and has left you in a worse position than you would have been in if you had received appropriate treatment. If receiving appropriate treatment would have made no difference at all, then your claim will fail. Once again, in some cases independent expert medical evidence will be needed to establish causation.

What does clinical negligence compensation include?

If you are able to prove that there has been a breach of duty of care and that this has directly caused or contributed to you sustaining injury, you will be entitled to recover compensation. This will include compensation for your physical and mental pain and suffering as well as compensation for your inability to undertake tasks and former hobbies (your “loss of amenity”). The measure of your compensation will be the difference between the position you would have been if you had received the appropriate medical treatment and the position you have been left in as a result of the wrong treatment. You will also be recover compensation for your financial losses caused by the negligent treatment which can include loss of earnings / income and the cost of care from friends or family or private care which you would not otherwise have needed. Your compensation award can also include the cost of any aids or equipment you have had to purchase, the cost of any ongoing or future medical treatment and the cost of making adaptations to your home.

If your circumstances do not meet one of more of the above criteria, you may still have cause to complain to your treatment provider which is likely to result in an internal investigation into the treatment which you received and may lead to measures being put in place to prevent similar incidents from happening in the future.

It is important that you seek specialist legal advice promptly if you believe that you may have received negligent medical treatment. The Clinical Negligence team at Trethowans will be happy to advise you today about your potential claim. Get in touch with us on 0800 2800 421 or contact us here to find out more.

Author

Laura Rowe

Solicitor