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Legal
Basics
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Personal Injury
Last modified:
13 January 2010
Medical Negligence
If you, or a loved one, are the
victim of medical negligence, incompetence or carelessness then you may be
entitled to claim compensation for injuries suffered - in the legal profession
they refer to this type of case as medical or, more commonly now,
clinical
negligence. Naturally it applies to doctors, surgeons and nurses, but it also
applies equally to other forms of medical treatment including
dentistry, opticians, psychiatrists, midwives and
physiotherapists.
Just like everyone else the medical profession have what is called a "duty of care" towards their patients - that is a duty to ensure that their patients receive proper treatment, in the proper manner. If they break this duty and the person they are treating suffers in any way as a result, then the victim has a potential claim. It all comes down to trying to establish whether the action taken, or not taken, was reasonable in all the circumstances. Some cases will be more straightforward then others - administering the wrong medication, so-called wrong site surgery where patients have an operation on the wrong part of the body, or giving too much or too little medication - are fairly straightforward cases in which negligence is likely to be easily established.
However medicine is a complex area, where opinions often differ, and therefore there may be scope for argument on both sides in many cases. For this reason it is essential that parties who decide that they do wish to pursue a claim for clinical negligence use a solicitor who is experienced in this type of case. They will be used to the complexities of the issues involved, the terminology, the procedures and will have the relevant medical and legal knowledge and contacts to ensure the case is thoroughly investigated and pursued.
Most clinical negligence claims need time for proper investigation and opinions from other medical and legal experts, but if you believe you have a possible claim then you should contact a solicitor without delay. If a death has resulted then the solicitor will probably need to attend the inquest.
The initial investigation
Negligence is sometimes easy to identify but often it is not. In those cases, your solicitor will need to undertake an initial investigation into the claim before he or she can advise you whether or not you have a good case.
Your
solicitor will initially need to speak to you in order to obtain your
instructions on what has happened. He
or she will then prepare a statement (a written version) setting out your
recollections and thoughts on what has happened to you. In many medical
negligence claims this can be a lengthy document
2.
Medical Records
Your
solicitor will then need to obtain copies of your medical records.
Often your GP’s records are required.
Where you have had treatment at a hospital these will also need to be
obtained.
3.
Medical Report
Your solicitor will need to obtain a report from a specialist medical practitioner on the standard of care given and whether or not that standard of care fell short of that which is considered to be reasonable in this country. Secondly your solicitor will need to obtain evidence as to whether or not that negligence caused or contributed to your injury or loss.
Sometimes
it may be necessary for reports to be obtained from more than one expert.
Although it is difficult to
be exact about how long the investigation will take, it is likely to be in the
region of six/twelve months. The
reason for this is that most medical experts have long waiting lists and are not
therefore able to produce their reports until some months after receiving
instructions in a case.
Once
the initial investigations into your claim have been concluded, your solicitor
can then advise you as to the strengths and weaknesses of your case.
He/she will also then advise you as to what needs to happen next in order to
take your case forward.
Usually
this will involve contacting the doctor or hospital to advise them of the claim
and to see whether or not liability is accepted and settlement likely.
In the event that liability is not accepted, your solicitor will advise
you as to your further options such as issuing court proceedings.
In
most clinical negligence or personal injury claims you have a period of three
years from the date of negligent treatment or your knowledge of the negligent
treatment, if later, to bring your case to the attention of a court, failing
which you lose the right to claim any compensation.
Sometimes
the court has a discretion to extend this period but those occasions are
limited.
If you are successful in your claim for clinical negligence, you will be able to claim not only compensation for any injuries and financial losses, but also your reasonable legal costs.
Whilst we accept that the medical profession have a difficult and evermore demanding job, it is perfectly legitimate to make a claim where things have gone wrong through carelessness, neglect or incompetence.
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