Unfortunately, mistakes in medical care and treatment do occur, but a mistake does not necessarily mean that you can succeed in bringing a clinical medical negligence claim. In order to be successful in a claim for clinical negligence, there are two tests that you need to prove. The first is called “breach of duty” and the second is called “causation”.
Breach of Duty
All medical practitioners owe a duty to their patients to exercise reasonable care and skill when carrying out their professional work.
For a medical practitioner to have been negligent, the client would have to show the standard of care provided by the medical practitioner fell below an acceptable standard of a competent practitioner in a similar field. A medical practitioner is not negligent simply because something has gone wrong. The practitioner would not be liable for making one choice out of two or favouring one school of thought rather than another. The practitioner is only negligent whether treatment provided falls below the standard of a reasonably competent practitioner in that particular field.
Causation
If you are able to establish a breach of duty, you then have to prove that it was more likely than not that the injury was caused by that breach of duty and not for some other reason. The legal test is straightforward. It is simply whether the negligence caused the injury.
Expert Evidence
Provided we are of the view that your claim has reasonable prospects of success, one of our clinical negligence solicitors will obtain all of your medical records including x-rays and scans. The records will be checked and sorted before they are sent to a medical expert who will prepare a detailed medical report. The expert will consider whether there is evidence of breach of duty and provided they are of the view that there was a breach of duty they will also consider whether the negligent act or acts caused or materially contributed to your injury.
Funding
At the outset, we will discuss the funding options with you, including the following:
l Legal Aid
l Conditional Fee Agreements (also called “no win, no fee” agreements)
l Pre-existing Legal Expenses Insurance
l Private payment
l After the event legal expenses insurance
Legal Aid funding for clinical negligence claims is only available in limited circumstances. In the majority of cases, we are able to offer our clients’ a “no win, no fee” agreement. In some cases, you may have pre-existing legal expenses insurance and if so, we will advise you to contact your insurers.
Provided you do not have pre-existing legal expenses insurance, we will advise you to obtain after the event legal expenses insurance to protect you against the possibility that you may lose the claim and in such circumstances, you may be ordered to pay the medical practitioners or hospital’s legal costs. We can arrange after the event legal expenses insurance for you and one of our specialist solicitors will explain this fully at the outset.
Author of this article, Rebecca Thomas, is a Director of Clinical Negligence at Duncan Lewis Solicitors. Rebecca has over 20 years’ experience in her field and represents clients in a wide range of cases including claims involving cosmetic and dental negligence, surgical and orthopedic injuries arising from delay, misdiagnosis or negligent spinal surgery, gastrointestinal and ophthalmic surgery.
