It is not surprising bearing in mind the financial problems of the NHS, that the number of medical negligence claims that I have dealt with are on the rise. In the last few years, I have dealt with a variety of different types and values of claims arising out of negligence of medical professionals in both the private sector and in the NHS.
Clinical negligence claims can involve an elderly client failing out of bed because there were no cot sides to her bed. I have also dealt with a case which involved the wrong drug being dispensed by a chemist to our client. I have also dealt with a case a couple of years ago when clients suffered a psychiatric injury as a result of the hospital’s failure to deal with a twin foetus when performing a procedure following a miscarriage. Our client was not aware that the twin was still in situ and had the misfortune to give birth to the dead foetus whilst at home. In all these case I was able to recover damages for the client for pain and suffering and any financial losses that followed the negligence.
However, clinical negligence claims are very difficult to prove. The appropriate burden of proof is whether, the doctor or other health professional failed to meet the standard of a reasonable body of practitioners, also in the same field. This is known as the “Bolam Test”.
The matter is often complicated by the fact that in addition to failing to meet the relevant standard of care, the Claimant has to also prove that this negligence has resulted in the injuries or has significantly contributed to them. For example if a cancer is misdiagnosed, the Claimant needs to prove that in addition to the negligence and breach of duty, that an earlier diagnosis would have made a difference to the prognosis. If the negligence has made no difference to the outcome or prognosis then there is no cause of action. The burden of proof is on the Claimant and the standard of proof is, on the balance of probability.
It is necessary for any claim to be brought within 3 years of the incident or the date of knowledge i.e. when the Claimant was aware of the claim and wrong doing. Although it is possible to rely on the Courts discretion to extend the time for pursuing a claim it is advisable to act as soon as possible. It is best to approach a solicitor as soon as the Claimant has knowledge of the wrong doing, as these cases are often long drawn out and can take several years to complete. These types of cases will rely heavily on experts who will need to look at whether the standard of care was below that expected. If breach and causation are established further experts will need to address the injury and losses by preparing a report on the Claimants condition and prognosis.
The parties will then try and agree a settlement. If the losses involve financial losses i.e. loss of earnings or the cost of extra care, further experts in these fields may be instructed to assist the court decide the value of the Claimants case. If the parties are unable to reach a settlement on either breach or valuation then the court will manage the case to trial, where the court will decide these aspects.
If you would like more information on clinical negligence, speak to our Personal Injury Solicitor, Zahreen Hussain on 020 7998 7777 or email her at firstname.lastname@example.org.