Medical negligence or as its often referred to now as clinical negligence as it covers all types of negligence that effects the well being of a person in its self is quite a broad term. In this article pacifically we are going to look at medical negligence, medical error that happens within a medical environment that causes ill effects up on a person health and how medical negligence is viewed within the UK legal system.
Medical Negligence Statistics In The UK
While many of us will go through our lives with little cause to use the National Health Service (NHS), some of us aren’t so lucky. And our luck can further dry up when an operation goes wrong, or we’re misdiagnosed or prescribed medication that does us more harm than good.
These incidents are rare, and the service the NHS provides is one of the best in the world. But mistakes do happen, and they’re costly. In 2019/20, the NHS paid out just over £2 billion settling clinical negligence claims. £61.4 million alone was spent on settling claims relating to GP surgeries, according to NHS Resolution’s annual report.
Claims appear to be on the rise too. In 2018/19 there were 10,672 new cases lodged against the NHS. In 2019/20, that figure rose to 11,682. More figures can be found on NHS Resolution’s statistics page.
How Do You Prove Clinical Negligence?
Just like any other negligence case, it’s necessary to establish three key criteria:
- That the defendant owed you a duty of care
- They breached that duty
- And as a result, you suffered harm
From a medical negligence perspective, the duty of care element is straightforward to prove. If you’re undergoing treatment at, for instance, your local GP or hospital, the healthcare professionals treating your injury or illness will owe you a duty to provide care of the standard expected of them and to inflict no avoidable harm.
Proving breach of duty is more difficult, however. Using legal tools such as the Bolam Test, claimants can assess whether a medical professional has fallen below the standard expected of them. The Bolam Test involves a panel of similarly qualified medical professionals assessing the alleged incident of negligence to determine whether they would have acted differently in the circumstances. If they would have done so, the healthcare professional will likely have breached their duty of care.
The final element, damage or harm, relates to the consequential impact of a doctor breaching their duty of care. Under this, it’s necessary to show that the breach caused or contributed to your injuries. This is otherwise known as causation.
Medical Negligence Claims and the Law
If a patient has a bad or poor experience while receiving medical care or treatment it does not always mean that medical negligence has been committed and this is even more so true when it comes to legal litigation and pursing a claim in court. It is fair to say that a patient can receive poor treatment from a medical care provider but unless such treatment has caused them to suffer further health wise then no claim for medical negligence can be pursed. In order for a victim to make an eligible claim for medical negligence it must be proven that the treatment or care that has been provided by a person who had responsibility for a person’s health has provided a service that was of poor care. Furthermore that care provided must have in some way had a direct effect up on the patient’s health. Within the boundaries of the law a medical negligence case will only be heard if the victim has suffered, it is not enough just for the standard of service to be poor.
For a case to be able to stand up in a court there must be evidence to show that a person of the same capabilities in a similar situation would not have caused or provided the same type of care. In layman’s terms it means that no other health care worker would have caused the negligence that the patient experienced given the same circumstances. In some situations it is not always transparent when negligence has been committed, some victims of Medical Negligence do not suffer the fall out till some time later, or may even ever be aware of the error committed. However, a recent change to the law now means that doctors must admit if a medical mistake has taken place. It is in the effort to prevent cover ups that have in the past meant that many patients have experienced negligence but it has never been brought to light and it has allowed medical staffs to continue to work at a poor standard. Shockingly in the past it was not compulsory for doctors to admit when they had made mistakes therefore many types of medical malpractice was swept under the carpet and as other medical staffs where afraid to tell the appropriate people as they feared being labelled as a whistle blower often medical negligence was not brought to light.
Many critics feel that this statutory Duty of Candour needs to go further as if examined correctly doctors are only admitting to harm that has already materialised, critics believe that any harm whether it has come to the surface or not must be admitted to in order to make a fundamental difference.
Time Limitation Boundaries and Medical Negligence
It is vital to say that in most cases there is a time limitation period and that if claims are not brought in the first three years of the incident happening then they can no longer be pursed. Of course like most things there are exceptions to the rule, as was mentioned previously not all medical mistakes are apparent straight away they may take some time to surface and for this reason a victim of the negligence has three years form discovering the negligence took place to make a claim. If a person is redeemed to have a mental issue then they have three years from the time that they make a full recovery to purse a claim within the courts, if the person is unlikely to make a recovery then there is no limitation and they can make a claim at any time. If a minor is subjected to negligent treatment they have three years from the time they turn eighteen to make a medical negligence claim if they choose to do so.
It is always advised if you believe that you have experienced negligent treatment to seek legal advice as soon as possible while the event is still fresh in a person’s mind and the appropriate witnesses and evidence can be obtained. Leaving such a decision for a long period of time can mean that evidence may be lost or witnesses cannot be found as people move around. Most legal law firms that deal with medical negligence now offer free legal advice without entering in to any legal litigation to people who believe that they have a case for medical negligence. Appointing a solicitor who specialises in the area of medical negligence that a person has experienced is always crucial in order to receive maximum results. Many are always in doubt as to whether to pursue a claim for medical negligence as they fear it is can be a complex case however with the right legal team behind them much of the work is carried out by them and little input from the client is needed.