The Medical Negligence Claims Process
Medical Negligence: A Step by Step Guide to Making a Claim
We know this can be a confusing and anxious time, so our aim is for this step-by-step guide to provide a clear overview of how to claim, ensuring you are well-informed throughout the process.
Negligence is the breach of a legal duty of care owed to one person by another, resulting in harm or injury to that person. (often called medical negligence) involves claims against doctors and other healthcare professionals and their employers.
Identifying the type of medical negligence is a crucial initial step. Medical negligence can manifest in various forms, including surgical errors, misdiagnosis, medication errors, and inadequate aftercare.
Recognising the specific type of negligence helps in gathering relevant medical evidence and building a strong case.
Why Medical Negligence Claims Are Made
The claim process involves several key stages.
From the initial consultation with a specialist lawyer to the gathering of medical evidence and the drafting of the letter of claim, understanding each step will empower you to navigate the process with confidence.
Dutton Gregory’s team is here to help you with your claim.
Initial Consultation with Medical Negligence Experts
The first step is to consult a specialist lawyer. It is vital to select a specialist lawyer with proven expertise in cases, as these claims can be highly complex and require a thorough understanding of both medical and legal issues.
Therefore, when selecting a lawyer, consider their experience, accreditation, communication skills, and reputation.
Once you have identified a suitable lawyer, the next step is to arrange an initial consultation.
Gathering Evidence for Your Claim
Once you have selected a lawyer to represent you, they will need to obtain your medical records to assess the details of your case and gather evidence.
To collect the medical evidence you need, you and your legal team will typically go through these stages:
- Determining which healthcare facilities and medical professionals were involved in your care during the period of alleged negligence.
- Submitting a Subject Access Request (SAR) to the relevant healthcare providers and awaiting their response.
Obtaining a SAR is a vital step in building a robust claim, as these records provide essential evidence regarding the care you received, the healthcare professionals involved, and the impact of the alleged negligence on your health.
Under the General Data Protection Regulation (GDPR) and the UK Data Protection Act 2018, you have the right to access your medical records.
Key Elements of a Medical Negligence Claim
Several key elements must be proven to succeed, including establishing a duty of care, proving a breach of that duty, and demonstrating that this breach caused the harm suffered.
Understanding these elements is crucial for building a strong and successful case.
To establish a duty of care, it must be demonstrated that a professional relationship existed between the healthcare provider and the patient, which created a responsibility to act in the patient’s best interests.
Generally speaking, there is little difficulty in proving that the doctor or medical team who is responsible for treating a patient owes the patient a duty to take care of them. This also applies to other healthcare professionals such as nurses, therapists, laboratory workers, physiotherapists, mental health care teams and the ambulance service, among others.
Once you establish that the healthcare professional owed a duty of care, you must prove that they breached this duty of care.
A breach occurs when the standard of care provided by the healthcare professional falls below what would be reasonably expected from a competent professional in the same field. To determine if a breach of duty has occurred, you must compare the actions or inactions of the healthcare professional in question to the accepted standards of care within their field of practice (known as the ‘Bolam Test’).
If the care provided can be proven to have significantly deviated from these standards, it is considered a breach of duty.
More recently, the court has stated that where a body of medical opinion is relied on to show that a particular doctor was not negligent, it is also necessary to show that such medical opinion itself is logical and reasonable.
To establish liability, it must be demonstrated that the breach directly caused the harm suffered.
You must prove that the injury or illness would not have occurred, or would have been less severe, had the healthcare professional not breached their duty of care.
The claimant must also demonstrate that they experienced an injury or loss as a result of the breach of duty. A claimant who can prove breach of duty and causation then needs to establish that they have suffered damage for which a claim can be made.
Damage includes physical injury and psychiatric injury, as well as financial loss (such as loss of earnings and future healthcare provision).
The court will endeavour to put the claimant into the position they would have been in if the negligent act had not occurred.
Dealing with Responses from the Defendant
Understanding the Letter of Response
Upon receipt of the letter of claim, the defendant, often represented by their legal team, has four months to investigate the allegations.
The eventual letter of response will outline their position on the allegations, either admitting or denying liability. This letter is a critical aspect of the claim process, as it sets out the defendant’s stance and any additional information or evidence they have gathered during their investigation.
Negotiating Settlements
If the defendant admits liability, either fully or partially, negotiations can start to settle the medical negligence claim. Your specialist lawyer will work with the defendant’s legal representative to agree on a fair amount of compensation, based on the evidence provided in your medical records and any independent medical expert reports.
If the defendant makes a settlement offer, your lawyer will discuss the offer with you and advise you on whether it is reasonable based on the evidence and the value of your claim. This ensures that you are fairly compensated for any medical treatment that resulted from a medical professional’s breach of duty.
Proceeding to Court If Necessary
If the defendant denies liability or if negotiations fail to reach a satisfactory settlement regarding the compensation amount, it may be necessary to consider court proceedings.
While the majority of claims are resolved without the need for a trial, it is essential to be prepared for the possibility of going to court. In this situation, your lawyer will formally initiate court proceedings by filing a claim form and particulars of the claim with the court and serving the claim on the defendant.
Your team will prepare for trial, working with you to gather any further evidence, refine your case, and develop a trial strategy.
Medical Negligence Compensation
Compensation claims are designed to provide financial redress for the harm and losses suffered as a result of medical negligence.
General damages are calculated to compensate those who have suffered pain, suffering and loss of capability they have experienced. It aims to address the non-economic aspects of the harm caused.
Special damages aim to address the quantifiable economic aspects of the harm caused, such as past and future medical expenses, loss of income, and costs of any necessary medical equipment.
How Our Medical Negligence Team Can Help
Our team possesses extensive experience in handling a wide range of cases, so we offer compassionate and understanding support during this challenging time.
We can assist you in gathering medical evidence, obtaining independent medical expert opinions, and navigating the legal process with confidence.
Our lawyers are committed to achieving the best possible outcome for your claim.
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