Go to Top

Medical negligence compensation claims

Medical negligence, more commonly and more recently referred to as clinical negligence is the procedure in which a patient takes the people responsible for the negligence in question to the civil courts in order to seek compensation.

Factors the Claimant has to Demonstrate

The patient bringing forward the claim must demonstrate the manner in which his or her practitioner was negligent in two manners to successfully make a claim, namely liability and causation.

Firstly to take liability, the claimant must be able to prove that the doctor or surgeon acted in a manner deemed unfit or inappropriate in comparison with how someone in their profession would be expected to have behaved, acted or operated and performed their job satisfactorily.

Having proven liability, next one must deal with causation. Here it needs to be proven that harm has come of the medical procedure which had been conducted, measured against the probability of the harm having arisen out of factors other than that of negligence.

Once the claimant has been successful in proving both liability and causation, his loss will then be quantified in terms of what is known as quantum. This will take into account the impact on the individual involved in terms of the compensation he will receive. Factors such as anxiety caused, any disability which may have arisen as a direct consequence of the medical procedure conducted as well as any loss of earning incurred due to the inability to attend his place of work will be taken into consideration when quantifying any compensation owed.

It must be proven that the practitioner’s act or the very inability to act resulted in the patient’s injury, not simply the probability of avoiding such an injury. This was brought to the House of Lords in 2002 in Gregg v Scott. For instance, had a doctor failed to identify a patient with cancer, there must have been more than a fifty per cent chance of survival for the doctor to be found negligent, that is more than simply a chance of curing.

The Civil Procedure Rules

Civil cases are conducted by Civil Procedure Rules and medical experts providing evidence must follow these when submitting their evidence. Under these rules it is essential to avoid any bias on the side of either the claimant or the defendant. The expert’s sole responsibility is to the advise the court, remaining fully impartial and representing their honest, professional opinion.

Lawyers must also stick to these Civil Procedure Rules. Following the claim, a ‘letter of claim’ must be prepared and several weeks given in order to prepare sufficient defence in response to this. Should the claimant wish to further proceed, ‘particulars of claim’ and ‘particulars of negligence’ must be stated to which a formal defence and any supporting evidence with be given. Reports from experts on both the claimant’s and defendant’s side will finally be produced before being traded with the other party. The whole process is a long, strung out affair, hence only in the worst of cases will this go to trial.

Certain limitation apply to medical negligence cases, most notably that a case must be made within three years of awareness of damage or impairment experienced with a couple of exceptions whereby the judge may overrule these such as the claimant being mentally ill or a minor at the time of the incident in question.

Call us for free: 0800 015 5500