Clinincal Negligence
What Do I Need To Prove If I Am To Bring A Successful Claim?
To succeed in securing damages/financial compensation following negligent medical treatment, you have to show that the treating clinician (this includes doctors, dentists, opticians and other medical professionals) owed you a duty of care, that they breached that duty of care and that, as a result , you suffered an injury or that your medical condition was made worse than it would otherwise have been .
If you were a patient, whether under the NHS system or privately, it is almost inevitably that the treating clinician did owe you a duty of care.
Breach of duty of care
To establish that the treating clinician breached the duty of care they owed you, it is necessary to show that the standard of care/treatment they provided fell below the standard of a reasonably competent doctor in the relevant field of medicine. For example, if your criticism is of treatment provided by your GP, only another GP can advise on the standard of care/level of treatment provided.
If the expert advises that a reasonable body of practitioners would have offered the same treatment, the treating clinician will have a defence to your criticisms.
It is a common myth that doctors stick together and will not criticise their colleagues. This is not the case. The medical experts we use are not connected to the treating clinician, are outside the locality of the criticised clinician and will be entirely independent. Our experts treat patients on a daily basis, are willing to speak out when another professional in their field has breached their duty of care. The aim of the expert is to provide independent evidence to the Court so that it can decide whether there was a breach of duty and - if there was - the consequences of that breach.
Causation
If you receive a supportive Breach of Duty Report, then you have successfully negotiated the first hurdle in proving a clinical negligence claim. The next hurdle is to show that, as a consequence of the breach of duty, your medical condition is worse than it would have been, had you been treated appropriately.
If the breach of duty did not cause your medical condition to become worse than it would have been with appropriate treatment, you will not succeed in establishing a clinical negligence claim attracting compensation. For example, imagine that a patient obtains evidence which states there was an unacceptable delay in diagnosing cancer. If the oncologist dealing with the issue of causation advises that the short delay did not alter make the patient's condition worse or significantly affect the treatment received by that patient, it is unlikely there will be a successful compensation claim.
Time limit
You have three years in which to issue court proceedings starting from the date of your injury or the date of knowledge of your injury. If court proceedings are not issued within that three year period, it is highly likely that the claim will become time - or "statute" - barred. You will not be able to make a claim. There are some important exceptions to this rule and it if you think your claim might be time barred you should take legal advice.
In clinical negligence claims it is not unusual for a patient to believe at the time, that they have been treated appropriately only to discover at a later date that the treatment they received fell below an acceptable standard and, as a result they suffered injury. The three year period runs from the date they discovered that there may have been a breach of duty which caused injury. Take for example a patient told that a lump was benign (non-cancerous) only to discover months or years later that the lump had indeed been cancerous. The date they were told that the lump was cancerous is the date when the three year limitation period starts.
Steps taken to investigate
Before issuing proceedings - and it is not always necessary to issue proceedings - medical evidence has to be gathered to support the claim. If the claim is supported by medical evidence, it is not unusual for a case to settle without the need to issue proceedings.
We offer our clients a free initial consultation. We take a detailed Statement, advise what is necessary to establish a claim and investigate how the claim should be funded. We discuss and advise about the various funding options. If you would like to consider those please click on "Funding" for further information.
The client is asked to sign forms of authority allowing us to obtain copies of their medical records, including their GP records. Once the medical records have been obtained, the client then has the opportunity to consider them before copies are sent to an appropriate independent medical expert with instructions to report.
It is usual to instruct a breach of duty expert first. However, there are occasions when it is more sensible to instruct a causation expert first.
It is not unusual to instruct several experts to advise on one client's claim.
If positive breach of duty and causation reports are obtained, we then instruct an expert to provide a condition and prognosis report.
Experts are usually able to prepare breach of duty and causation reports based on the medical records alone as they are commenting upon historic events. However, to prepare a condition and prognosis report, the expert will require up to date medical records and will need to examine the client.
If we have received positive expert reports supporting a claim, we will need to calculate the likely value of the claim. The Condition & Prognosis Report enables us to value general damages, i.e. damages for actual pain, suffering and loss of amenity. However, the client is also entitled to their reasonably foreseeable out of pocket expenses. This is dealt with in more detail at our link What your claim is worth.
You are entitled to out of pocket expenses which would not have arisen but for the negligence. Often this includes care which has been provided by a family member. In such cases, it is usual to take a detailed Statement from the person who has offered care, setting out in detail the level of care provided. These expenses are then recorded in a Schedule.
Once we have gathered all the necessary expert reports and evidence to support a claim, it is likely a Barrister will be instructed to advise. The point when a Barrister becomes involved depends upon the issues in and complexity of the claim.
It may be appropriate before instructing a Barrister, to send a Letter of Claim to our opponents based on the evidence gathered. We may delay sending instructions to the Barrister until we have a response to the letter of claim.
A Letter of Claim sets out allegations of breach of duty and a description of the injury you have suffered. It also sets out our valuation of your claim. This gives the criticised clinician[s] or the Health Care Trust the opportunity to respond. Indeed, they are obligated to respond within a three month period. If they admit s that mistakes were made, it may be possible to settle the claim without having to issue proceedings. If they refuse to accept the allegations made, Court proceedings will have to be started.
Issue of proceedings
Once proceedings are issued, the client alleging negligence becomes the Claimant and the clinician or Healthcare Trust, the Defendant.
We usually instruct the Barrister to prepare Particulars of Claim. This often happens after a conference with the medical experts and the client. The Particulars of Claim sets out, formally, the allegations of breach of duty and the results of the breach. The proceedings are usually issued from the client's local court.
The Defendant responds by serving a Defence.
If the Defendant continues to defend the claim, solicitors representing both parties, working with the court's approval, agree a timetable of steps to be taken to progress the matter to a final hearing/trial. These steps include disclosure of documents upon which the parties intend to rely, e.g. medical records and documents which support the Claimant's special damages, exchange of expert reports and an agreement that the parties' experts should meet to discuss the case further.
It is not unusual, whilst these steps are being put in hand for the claim to settle. If the case does not settle it is likely that there will be a further conference or Advice from the Claimant's Barrister. The Advice is likely to assess the strength of the claim, its value and recommend whether the matter should continue to a hearing. Very few cases, in practice, ever reach a hearing. Most cases are settled.
If the client's case goes to a final hearing/trial, we prepare the necessary Trial Bundles, ensuring that all the evidence is placed before the court for a Judge to consider. If witness statements and/or expert evidence remains in dispute, it is likely the Judge will need to hear oral evidence from those witnesses/experts. Once all of the evidence has been heard, a Judge will decide whether or not the Claim succeeds and, if so, the level of damages the Claimant should receive.
In larger cases, it may be that the court will direct that there be a split trial. In that event the court will deal with breach of duty and causation first. This is often arranged with the object of saving costs.