Nothing is more valuable than a person’s health and well-being. Therefore, when we seek treatment from a healthcare professional, we expect to receive the highest standard of care. In many cases, patients receive positive outcomes after undergoing medical treatment. However, this isn’t always the case. When this happens a person may decide to pursue a medical negligence claim.
So, what is medical negligence? Medical negligence is the term to describe a patient receiving substandard care from a medical professional. You may also hear medical negligence described as clinical negligence, as the two terms are often used interchangeably.
If medical professionals are negligent in their treatment or misdiagnose a patient, the patient can be left injured, with additional medical issues, or their existing condition can be worsened. When this happens, it is referred to as medical negligence.
In legal terms, medical negligence is classed as the failure to exercise the level of care toward another person (the patient) that a responsible person would exercise under similar circumstances. In short, medical negligence is when either actions or failure to act by a medical professional, or medical setting results in injury or loss to a patient.
Medical negligence can occur in every area of medicine. The below data highlights the prevalence of medical negligence claims in different clinical specialisms:
• Orthopaedic surgery: According to NHS Resolution, there were 1,127 clinical negligence claims filed for orthopaedic surgery in 2022/2023.
• Gastroenterology: Medical negligence relating to gastroenterology accounted for 3% of the clinical claims received by the NHS in 2022/2023.
• Radiology: The NHS Litigation Authority (NHSLA) settled 791 radiology claims between 1995 and 2014.
• Urology: Damages of £74.5 million have been paid out in damages by the NHS for urology claims from 1997 - 2017.
• Obstetrics: NHS Resolution data for 2022/2023 shows that obstetrics had the highest clinical negligence claims, with 1,392 claims made.
• Gynaecology: The Maternity and Gynaecology GIRFT Programme National Specialty Report 2021 states that gynaecology accounts for 7% of all NHS medical negligence claims.
• Psychiatry and mental health: Clinical negligence relating to children’s mental health alone has resulted in the NHS making compensation payouts of £20 million.
• General medicine: General medicine accounted for 5% of NHS clinical negligence claims in 2021/2022.
• General surgery: NHS ‘Never Event’ data for 1st April 2023 - 31st March 2024 shows 179 incidents of ‘wrong site surgery’
• Emergency surgery: Emergency medicine accounted for 12% of the 10,062 clinical claims received in 2022/2023.
As we’ve seen, medical negligence can occur in all areas of clinical practice. There are also many different types of medical negligence. Below are the most common examples of medical negligence:
Misdiagnosis relates to the claims where a patient has been incorrectly diagnosed with a condition. This could result in delays in receiving the correct diagnosis and treatment.
Surgical errors relate to mistakes made during surgery that could have been prevented or resolved.
Delayed diagnosis can occur when signs of a particular illness or injury are missed by medical professionals. This means the patient doesn’t receive treatment as quickly as they should.
Failing to manage a medical condition means a patient doesn’t receive the ongoing care they require. This could mean that checkups aren’t scheduled, medication isn’t reviewed regularly enough, or a referral to another medical professional isn’t made in a timely manner.
A never event refers to a serious incident that should never have happened during the course of medical treatment. For example, leaving a piece of surgical equipment inside a patient, or amputating the incorrect limb.
If you’re ready to make a medical negligence claim, we’re here to help. Our experienced team of medical negligence solicitors has the knowledge to guide you through each step of your medical negligence compensation claim.
• Firstly, contact our team to arrange your FREE interview.
• If we believe you have a viable medical negligence case, we will offer you a No-Win-No-Fee arrangement.
• Next, we will gather evidence on your behalf, such as medical records to strengthen your case.
• We will then begin negotiations with the defendants or their insurance company to work towards achieving the most successful outcome for your compensation claim.
• Your solicitor will keep you updated throughout the process and advise you on the best course of action as the claim progresses.
Every medical negligence claim is different, so we take the time to provide you with the guidance you need to get the medical negligence compensation that you deserve.
There is no set figure for the compensation you will receive when making a compensation claim. Instead, several factors will be taken into account when deciding on the compensation that will be paid out for your claim. These include:
• The severity of the injury or illness allegedly caused by the negligent treatment.
• The care and treatment you will likely need in the future.
• The expenses you have incurred as a result of the alleged medical negligence.
When we are gathering evidence for your medical negligence claim, we will look at the following factors to calculate how much compensation you should receive:
• Loss of earnings since the incident and any future loss of earnings.
• Cost of care you have received so far and will require in the future.
• Cost of any treatment you’ve had to help with your recovery from the illness or injury, including future treatment.
• Travel expenses that have been incurred due to the illness or injury.
• Cost of any adaptations that have been/need to be made to your home and car.
Medical negligence payouts in the UK can vary widely. The NHS Resolution Annual Report for 2022/2023 showed that the NHS paid out compensation ranging between £25,001 and £50,000 to 1,167 patients. 282 claims received compensation amounts ranging between £250,001 and £500,000 in the same period.
These figures illustrate the wide range of compensation payments made by the NHS in compensation claims. While compensation amounts may vary, you can rest assured that we will always work to secure the maximum amount of compensation for your medical negligence claim.
Most medical negligence cases do not go to court. NHS Resolution reports that 77% of claims in 2021/2022 were resolved without court proceedings. In the rare instance that your case does need to go to court, we will be with you to guide you through the proceedings.
It is essential for a strong case to be put together when attempting to claim damages for medical negligence. There are four main elements that are used to determine whether a medical negligence claim is successful:
Firstly, it must be established that the person or organisation you are bringing the medical negligence case against owed you a duty of care. Duty of care means that the individual or organisation should have acted with the same caution and attention that a responsible person would while you are using their service or under their care.
Next, you need to prove that the medical professional breached their duty of care towards you. A medical professional could be considered to have acted negligently if the care they provided failed to meet the expected standard of a reasonably competent doctor in the same field of medicine.
In medical negligence cases, causation refers to the cause of the illness or injury. This can be tricky to prove, as even if the medical professional admits to acting negligently and breaching their duty, the illness or injury could still have occurred.
For your medical negligence claim to succeed, it needs to be proved that your illness or injury was the result of the action (or lack of action) of the medical professional(s) entrusted with your care.
To be awarded compensation for your medical negligence claim, it needs to be established that you suffered damage as a result of the negligence.
Damages that are incurred due to medical negligence need to be specific in order to be awarded compensation for them. For example, emotional upset isn’t recognised as a reason for damages to be awarded. However, the diagnosis of a recognised condition such as post-traumatic stress disorder (PTSD) could result in damages being awarded.
When deciding the amount of compensation to be awarded, the physical injury, psychiatric injury, and financial losses you incurred due to the negligent action will be taken into account.
Our team will work closely with you to gather evidence that supports your claim and ensures the above criteria are met. This will include gathering your medical records, gaining expert opinions, assessing evidence of the financial costs you have already paid out.
Patients have the right to make claims for medical negligence against both the NHS and private medical practitioners.
It is possible to make a complaint to the NHS about your treatment while also making a compensation claim. Here at Tilly Bailey & Irvine, we are accredited by Action Against Medical Accidents (AvMA). AvMA can provide valuable advice on how to make a complaint to the NHS, as explained in the above video.
The treatment you receive from medical professionals should never be impacted by making a claim against the NHS.
Your right to complain and make a claim for medical negligence is written into the NHS Constitution for England, which states: “You have the right to compensation where you have been harmed by negligent treatment.”
Medical negligence claims can be made on behalf of a child. Children under 18 years of age are not permitted to bring a medical negligence claim to the courts. However, an adult can raise a medical negligence claim on behalf of a child
There is a time limit of three years for bringing a claim, known as the limitation period. The claim should be made either within three years of the date the alleged negligence took place or within three years of the claimant realising that a problem or injury has occurred as a result of medical negligence.
The only exception to the three-year limitation period is for children or individuals who do not have the ‘capacity’ to make the necessary decision relating to the medical negligence incident or subsequent claim themselves.
Settling a medical negligence claim can be a lengthy process. In some cases, claims can take a few years to reach a resolution. How long it takes to settle a claim depends on many factors, such as the complexity of the case, how many people are affected, how long it takes to gather evidence to support the claim.
Legal aid is not typically available for medical negligence claims. However, there are a couple of exceptions to this rule. If a child has suffered a neurological injury that occurred during pregnancy, birth, or the eight-week postnatal period, you may be able to receive legal aid.
In some circumstances, it is also possible to receive ‘exceptional case funding.’ You will need to discuss the possibility of receiving this legal aid funding with your solicitor.
How We Can Help
At Tilly Bailey & Irvine, we are highly experienced in dealing with medical negligence claims. We understand that the process of making a claim can seem daunting, but we will guide you through the entire process. You can depend on us to use our vast experience to achieve the best possible outcome for your medical negligence compensation claim. Contact the TBI Law team today, to get what you’re entitled to.
