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When medical professionals make mistakes that result in a person suffering physical or psychological harm, or even worse still dying, it may be possible for compensation to be claimed where the facts of the case point to clinical negligence having occurred.

But what exactly is clinical negligence and what are the criteria that need to be met in order for a claim to be made?  The answer to these and other frequently asked questions are provided below in a blog written by the head of our clinical negligence team, Dominic Jones.

What is clinical negligence?

Clinical negligence, also referred to as medical negligence, occurs where the standard of care provided to you or an affected loved one falls below what the medical profession agree to be acceptable standards.  It can occur in a variety of ways, including through:

• Misdiagnosis, wrong diagnosis or delayed diagnosis;
• Incorrect or delayed treatment;
• Unnecessary or inadequately performed surgery;
• Prescription errors or dispensing mistakes;
• Ineffective infection control; or
• Substandard personal care provision.

Against whom can a clinical negligence claim be brought?

A claim can be brought against a wide range of medical professionals, including:

• GPs;
• Doctors, nurses, surgeons and anesthetists;
• Dentists, oral hygienists and orthodontists;
• Pharmacists; and

In most cases, the claim will be directed against the medical professional’s employer, which will usually be an NHS Trust, a private hospital, a GPs surgery, an NHS or private dental practice, a private or publicly funded care home or an NHS or private opticians service.

What do you need to prove to establish that negligence has occurred?

To bring a claim for clinical or medical negligence, you need to be able to show that:

• You or your loved one were being looked after by a medical professional who was duty bound to exercise reasonable skill and care and to act in accordance with accepted medical practice standards;
• There was a demonstrable failure by that professional (or a group of professionals) to comply with the duties by which they were bound; and
• As a direct result of this failure, you or your loved one suffered physical or psychological harm or your loved one died in circumstances where their death could have been avoided.

What can I claim compensation for?

Where an injury has been sustained, you can claim compensation for your pain and suffering, for any reduction in your quality of life and for any financial losses or extra expenses you have incurred or will incur in the future.

Specifically, you can claim for:

• Physical pain and mental anguish;
• Temporary impairment and permanent disability;
• Temporary or permanent disfigurement;
• Loss of pleasure in everyday life;
• Loss of companionship where your injuries affect your ability to forge or maintain relationships;
• Loss of past and future earnings;
• Loss or reduction in pension entitlement;
• Reimbursement for expenses, such as prescription charges and travelling costs;
• Funding of private medical treatment;
• Funding of mobility aids and prosthetics;
• Funding of home or vehicle adaptations;
• Funding of a cleaner, gardener or handyman where required; and
• Funding of residential care home fees or the cost of proving at-home care services.

In the case of death caused by medical malpractice, you can claim for the mental trauma you have suffered as a result of your bereavement and the cost of arranging a funeral, together with the loss of care, protection and companionship your loved one provided and the loss of any financial support that you could otherwise have expected to have received.

For further information on the compensation you may be entitled to claim, please click here to read our dedicated compensation guide.  You may also find it useful to visit the compensation sections of our webpages on GP negligence, NHS hospital negligence, private hospital negligence, dental negligence and medical negligence resulting in death.

How much compensation is likely to be paid?

The amount of compensation you receive will depend on the severity of the injuries you or your loved one have sustained, and the impact they have or can be expected to have as you or they seek to move forward.  In some cases, the payout may be in the low thousands, while in others it could be in the hundreds of thousands or even the millions.

Will making a claim always necessitate going to court?

The vast majority of clinical negligence cases are settled without the need to go to court, usually through negotiation with the insurer appointed to represent the person or organization responsible for the failings that have occurred. Indeed, it is worth noting that in claims directed against the NHS, there is an out-of-court settlement rate of in excess of 98 per cent.

That said, there are some cases which do end up needing determination by the court and in these circumstances it is essential that you have a lawyer by you side who can offer you appropriate support and ensure that your claim is properly presented.

How long do clinical negligence claims typically take to resolve?

The amount of time that you will have to wait for a clinical negligence claim to be settled will depend on whether or not your allegation of negligence is admitted and whether or not the level of compensation you should receive can be agreed by mutual consent.

By way of general guide only, you should expect most clinical negligence cases to take between 18 to 24 months to deal with, though complex or contentious cases may take longer.

Is there financial help available while a claim is being processed?

In most cases where liability for negligence is admitted, it will usually be possible for you to request an advance of the compensation you are likely to receive, in order to help tide you over while you wait for your claim to be settled.  This is done by making a request for one or more interim payments, the amount of which will be deducted from your final payout.

You may also be entitled to submit a claim for certain state benefits.

What evidence will need to be gathered in support of a claim?

To support your claim that negligence has occurred, it will usually be necessary to obtain:

• A copy of your medical records, or those of your loved one;
• A copy of any investigatory report that has been prepared, e.g. by a hospital or NHS Trust following the lodging of a formal complaint;
• A report from one or more medical experts who can confirm that the treatment provided did, indeed, fall below par and who can explain the nature, extent and effect of any consequent physical or psychological injuries you or your loved one have sustained; and
• A report from one or more financial experts who can assess the monetary impact of the negligence that has occurred, for example through lost earnings or ongoing care costs.

It will also be necessary to obtain a copy of any autopsy carried out where alleged negligence has resulted in death, together with the coroner’s report where an inquest was ordered.

Is there a time limit for bringing a claim?

As a general rule, a claim for clinical negligence must be brought within three years of the alleged negligence occurring or within three years of you realizing that negligence may have taken place.  However, there are a number of exceptions to this rule, including:

• Where the victim of the negligence is under the age of 18 – in which case a claim can be made at any point in time prior to them turning 21; or
• Where the victim of the negligence lacks mental capacity – in which case a claim can be brought at any point in time while the incapacity remains, subject to a requirement that proceedings must be issued within three years following capacity being regained.

Where can I find out more?

For further information about bringing a clinical negligence claim, please call us now on 0800 1956412 and ask to speak to the head of our clinical negligence department, Dominic Jones.

We offer a free first interview and in most cases can provide advice and representation on a no win, no fee basis in order that you can proceed with a claim without having to make any initial financial outlay and with responsibility for paying our costs only arising in the event that your claim is successful.  For more details, please see our no win, no fee costs factsheet.