Solicitors Specialising in Personal Injury Claims Hampshire

Andover Solicitors

Clinical Negligence
by Talbot Walker Solicitors

The term clinical negligence (sometimes referred to as medical negligence) is a phrase which is used to cover a wide variety of problems arising out of clinical care (or the lack of it).

Put at its simplest, it is used to describe a mistake made by a clinician that no reasonable clinician would make which has caused a problem or added to an existing one. Cases can also involve a failure to explain the possible consequences of a particular procedure or the failure to obtain informed consent to a particular treatment. Most people are concerned to claim compensation through the courts although there are other remedies which may be appropriate.

There are a number of other remedies available which may be used in conjunction or as an alternative to a claim for compensation. For example, there is an NHS complaints procedure which applies to all people working in the NHS. There is a three tier system with the initial complaint being refered to as 'Local Resolution'. There are time limits for making a complaint and you therefore need to act promptly.

In very serious cases the allegations against a clinician may be sufficient to justify a complaint of professional misconduct to the clinicians' governing body such as the General Medical Council who, have various sanctions available ranging from striking off the doctor concerned or, ordering that he or she undergoes further training.

It is therefore important to identify what you are trying to achieve before you consult a lawyer. If for example an apology or explanation is being sought then an action in the courts is not for you.

Suing for Damages or Compensation
In order to succeed in a claim for damages you will need to show on a balance of probabilities that the event complained of was somebody’s fault. “Fault” in this context means that the Doctor or Hospital owes the patient a duty of care and that that duty of care has been breached. This breach is called negligence.

The test of negligence stems from a 1957 case of Bolam –v- Friern Hospital Management Committee and involves showing the that the Health Professional concerned has failed to exercise the skill that a competent Health Professional would be expected to have in his or her field.

Because the practice of medicine is not an exact science there can often be more than one acceptable way to treat a condition and the fact that a particular Doctor chooses one way rather than the other is not negligent.

Not all adverse results of treatment are negligent although if there is a significant risk of an adverse result then a patient should be properly warned about it before consenting to the procedure. The level of information that needs to be provided depends on each particular set of circumstances and follows the House of Lords case of Sidaway –v- The Board of Governers of Bethlem Royal Hospital and Maudsley Hospital.

If a breach of duty or negligence is established then you then need to show that that negligence or breach of duty caused or contributed towards the injury. As the law currently stands it is the Claimant’s job to prove this on a balance of probabilities. This problem frequently defeats claims particularly in cases where the prognosis would not be affected even if the correct treatment had been administered.

Progressing the Claim
A claim is progressed by obtaining the relevant medical notes. You have a statutory right to obtain copies of your medical notes subject to paying a fee which is currently limited to a fee not exceeding £50.

In certain unusual cases Doctors can oppose the release of records however this is rare.

Once the notes are obtained they will usually be sent to an independent specialist medical expert who can express an opinion as to whether or not a breach of duty may have occurred. He or she will also be able to advise as to whether or not the breach of duty may have led to the injury.

Funding the Claim
Please see the section at the top of this page relating to possible methods of funding. Legal Aid currently exists for clinical negligence cases subject to a means test and to you being able to demonstrate that the case is likely to succeed. There is also a requirement that the amount of damages that you are likely to obtain by any action is proportionate to the costs of that action.

The Court Process
The conduct of an action is governed by the Civil Procedure Rules (CPR). Within those rules there is a protocol for clinical negligence claims. This involves your Solicitor writing to the Doctor or Trust concerned putting forward details of the claim.

The Trust then have three months in which to respond in detail to the letter of claim. Proceedings should not be commenced during that period.

Once the Defendant’s position is know it may either be possible to negotiate a settlement of the claim or if that proves impossible proceedings may need to be issued.

If proceedings become necessary they will usually be issued in the High Court. A claim form setting out concisely the circumstances of your claim will be sent to your local High Court together with a medical report summarising your current medical condition and a list of the losses that you have sustained as a result of the alleged negligence.

The Court will arrange for the claim form to be sent to the Defendants who will have 14 days to file an Acknowledgement of Service with the Court. Commonly, the Defendant’s request for further time in order to produce a detailed defence which will usually be granted.

Once the Defendant’s defence is filed the Court will usually issue a set of Directions determining how the matter is to be brought on to a Trial.

Commonly, these Directions will involve the simultaneous disclosure of medical reports to each other and the simultaneous disclosure of witness statements of fact.

It will also consider whether or not the dispute can be resolved in any other way such as by Alternative Dispute Resolution (ADR).

If the case does not settle at any of these stages a Trial date will be set and it would be usual for the witnesses of fact and experts to give oral evidence on oath.

The whole process is lengthy and although each case is different it is unlikely that a case will be brought to Trial inside 18 months from when you first instruct a Solicitor.

This information is of necessity only a summary and if you would like to contact us further please complete the Accident Form at the top of this page and we will contact you to discuss the matter further. You will not be charged for any advice until and unless you are told that work will be chargeable.

Talbot Walker Solicitors
16 Bridge Street
Andover
Hampshire
SP10 1BJ