What is Medical Negligence and Medical Malpractice?
Medical Negligence is defined in law as a failure of duty of care to patients and occurs if negligence causes harm to the patient. People can be inhibited from claiming compensation because they are not sure what this actually means within the current culture of the NHS, with its associated prolonged waiting lists and difficulties accessing investigations and treatments.
The reality is that negligence encompasses all forms of inadequate treatment and or medical errors both in the NHS and private sector, though not limited to:
- Misdiagnosis or neglect.
- Delay in diagnosis and therefore instigation of treatment, which contributes to worsening of symptoms or deterioration in health.
- Surgical errors- wrong surgery, excessive scarring etc.
- Medication errors in prescribing or administration.
- Injuries sustained whilst in hospital.
What is the basis of the claim?
Prior to any procedure the risks should be fully explained to the patient and the healthcare provider has a legal and ethical responsibility to treat the patient with the highest degree of skill and care appropriate to the case.
The legal basis of the claim is the establishment of liability and causation. This means that the test of liability must prove that the balance of probability shows that the treatment fell below the accepted standard that would have been provided by any other practitioner in the same field to this patient and in the same circumstances. In addition it must be shown that the negligent actions of the practitioner lead to harm, serious injury or even death.
People have reasons other than financial when making a medical malpractice claim. Often people pursue claims because they never received an acknowledgment of the effect of the treatment they received or an apology at any time.
A claim for compensation empowers people who have felt mistreated or unheard. Many people say they pursue compensation claims in order to prevent the same thing happening to someone else in the future.
When can I claim?
In general you have three years from the date of the injury itself or the date you became aware that an injury had been inflicted to make a claim in the UK, although this is extended for injuries occurring in childhood until the age of 21.
How much compensation?
Each case is assessed on its own merits and the amount of compensation is based on how much your life has changed now and is likely to be in the future based on your current age and financial dependents. Whilst actually paying a certain amount based on the injury and associated pain or suffering, compensation also typically reflects such costs as:
- Extra expenditure incurred because of the injury, such as travel to hospital appointments, extra washing, or outsourcing usual domestic tasks such as gardening or housework.
- Loss of income and associated benefits.
- Funding care at home or adaptations to the house.
How long will it all take?
This depends on the current stage of treatment and if any further treatment is planned because the amount of compensation will depend on the degree of your ultimate recovery and level of function. This can take some time to establish.
It will also depend on how quickly the original practitioner(s) and other witnesses provide evidence in the form of reports and medical records, in addition to the availability of independent experts to report on your case.
What type of solicitor should I use?
Proven expertise in this field is of more benefit to a potential claimant than using a general solicitor on the high street. This is a specialised area of law because of the complex issues involved. Whilst it is probably better to speak to a lawyer as soon as you can if you want to find out if you are eligible to make a claim, you are under no obligation to pursue a claim.
There are also other options to explore in the first instance. You can talk to PALS at your local hospital or make an internal complaint; ask your GP to refer you for a second opinion or consult with the Citizens Advice Bureau or AvMA. AvMA is an independent charity which promotes better patient safety and justice and also provides support and guidance for people who have been affected by medical negligence.
John Corwin is a freelance medical writer covering medical news, such as new drug releases, and cases of exceptional treatment be they good or bad.