When can you claim for medical negligence?

August 19th, 2021

While our NHS is the envy of the world, unfortunately, some people will have a bad experience with a medical professional at some point in their life. A rude or abrupt GP or a less than sympathetic nurse can be frustrating, but when does a ‘bad experience’ turn into negligence?

Medical negligence is a serious issue. We’re talking much more than a frosty encounter with a stressed-out and overworked GP, or a dentist who tells you off for not flossing properly. Medical negligence leads to actual physical harm and is the result of a failure on the part of a medical professional to carry out their job to a standard that you would expect from someone of their expertise and experience.

What is medical negligence?

Negligence covers a range of situations. It could be a delay in diagnosis or a misdiagnosis that caused you to have a worse health outcome, an incorrect prescription, failing to advise on the risks of a treatment or failing to get your informed consent. At the far end of the spectrum are what hospitals call ‘never events’ – events that shouldn’t happen and that causes a patient injury such as leaving a swab or even a piece of equipment inside a patient during an operation. Thankfully, never events are rare, but errors do happen, such as making a mistake during surgery, or even performing the wrong operation.

In some very sad cases, medical negligence may even lead to the death of the patient. In these instances, the family of the patient may be able to make a claim on their behalf. With our NHS recently being under a lot of pressure, waiting times for routine operations have increased. If you have been properly diagnosed and your surgery is not classed as urgent there is currently no claim for medical negligence.

What can you do?

To put in a successful medical negligence claim, you have to prove that any negative health outcomes were a direct result of negligence and not something that may have occurred naturally with even the best medical support. You also have to show that the medical professional acted in a manner that you would not expect from a professional of their rank or experience. Put simply, you need proof that their actions caused a medical condition to be compounded.

If a patient has died while under the care of medical professionals or is incapacitated to such an extent that they cannot take action themselves, and you believe there is a negligence case, then as long as you’re the next of kin, you may be able to take legal action for compensation.

What can you claim for?

Compensation can be claimed for:

  • Pain and suffering
  • Ongoing or life-long treatment
  • Loss of earnings
  • The cost of additional care or adaptations to a home to cater for disabilities caused as a result of medical negligence.
  • Psychological damage

NHS Resolution

Initially, you can go through the NHS Resolution complaints procedure, but this does have a reputation for moving very slowly. You can use it to get more information on what happened (and why). However, fewer than 2% of cases that go through the NHS Resolution process go to court, with most either being dropped or settled out of court.

That doesn’t mean it’s over. If you are not happy with the answers they give you then it’s time to call in the legal experts.

Any legal action you take will be stressful and time-consuming, and can be particularly difficult if you are also caring for the person who has been injured. Clinical negligence is only designed to compensate an individual or their relatives financially. It will not lead to the healthcare professional being disciplined, or force a primary care institution to change their procedures. A medical negligence case won’t even garner an apology – something that is often more important than the money to the victims.

There are clear guidelines as to what constitutes negligence when it comes to medical treatments, so it’s important to talk to a legal advisor who specialises in medical negligence cases to check if your situation falls into one of the categories. Remember that all-important requirement – proof. Hearsay isn’t evidence, so you’ll need to make sure you have access to all of the facts before pursuing a claim for medical negligence.

Time limits

You have three years from the date of the incident or when you should have become aware of the negligence to start any legal claim for compensation in a medical negligence case. If the victim was a child then that limit doesn’t start until they reach their 18th birthday. If a victim doesn’t have the mental capacity to manage their own affairs or make a claim then again, that limit may not apply.

The advice is to start a claim sooner rather than later. Talk to one of our experts in medical negligence compensation claims today for a confidential review of your case.