Claiming for Clinical Negligence

by Five Fantastic Lawyers™ on January 31, 2013

Post with some tips for how to claim for clinical negligence.

Health complications and their associated treatment are, in most cases, the most stressful experience that an individual will face.  The worst case scenario therefore would be where standards are not met in such treatment and things, inevitably, go wrong.

The law provides individuals with a route to make a claim against medical professionals where care standards are not met.  Such a claim would be brought under the heading of clinical negligence.  Claiming for negligence in such a scenario is somewhat complicated as there are a number of legal principles that must be considered.

Legal Principles

Medical professionals owe what is called a ‘duty of care’ to those individuals to whom they provide a service.  This means that a minimum standard of care is expected of them and that they must not act negligently.  A claim for clinical negligence will arise in circumstances where this duty of care has been breached.  Such a breach may occur, for example, where an incorrect medication dosage is administered resulting in injury or death, or where a failed or delayed diagnosis has been given.

While it is easy to see that a duty of care exists between a medical professional and his or her patient, it is more difficult in clinical negligence claims to prove that this duty has been breached.  The reason for this is due to the fact that the medical profession is a highly specialised field and, in order for a clinical negligence claim to be successful, you must prove that there were errors in the treatment you received and that those errors caused the injury for which you are seeking compensation.

Further to this, not only must you prove that there were errors in your treatment, you must also prove that these errors were of such a nature that no competent medical professional would have made the same errors in the same set of circumstances.  This can be a stumbling block for a lot of claims as it relies on the use of experts in the relevant medical field who have to give evidence that, if faced with the same set of circumstances, they would not have administered the treatment complained of.  In other words, to prove that there were errors in your treatment, you must get another similarly qualified expert to give evidence that he or she would not have administered the same treatment.

This difficulty is tempered somewhat by the fact that you only need to prove that it was more probable than not that no competent medical practitioner would have made the errors in your treatment.

You must also consider the fact that you have to prove that the errors materially contributed to your injury.  While there have been great advances in the field of medicine and medical treatment, there are still numerous instances where our understanding of certain conditions is lacking.  A historical example of this, although not related to a claim in clinical negligence, is the various asbestos-related illness claims brought since the 1930s.  It took a while for the medical profession, and thus the courts, to recognise that, on the balance of probabilities, those workers exposed to asbestos and asbestos fibres suffered a greater risk of contracting asbestosis or mesothelioma.

It can be seen, therefore, that this area of law is ever-changing.

Claiming for negligence

If you are claiming for negligence, the first port of call for those considering a claim would be to consult a solicitor.  There are specialised clinical negligence solicitors who are experienced at making initial assessments of the strength, or otherwise, of your claim.  Clinical negligence solicitors can investigate your claim and, where necessary, obtain the expert evidence required to support your claim.  It must be noted that in many cases, if you wish to pursue a claim for clinical negligence, you must do so within a period of three years from the date of the accident or treatment.  An clinical negligence solicitor can, however, provide advice in relation to this are there are exceptions to the three year rule.

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