What counts as medical negligence? What you can do if you or a loved one suffer further illness or injury due to errors made by a healthcare professional.
A guide to medical negligence and how to know if you are eligible to claim
In January 2020, parliament debated over the “indignity” with which a 92-year-old RAF veteran was treated by the NHS. The patient was left for 12 hours on a trolley in a Leister based hospital because there were “no beds.” A string of reports by both ITV and the BBC have criticised NHS wait times, with one BBC report in particular documenting the shocking case of another patient left on a hospital trolley for 12 hours following a suspected spinal cord infection in December 2019.
NHS delays have long been a point of concern for patients and their families. Delays in treatment, whether in A&E or in seeing an appropriate specialist, can have a drastic effect on the patient’s recovery. They can lead to delays in diagnosis, delays in treatment and can even result in the original sickness and injury becoming even worse and having irreversible effects.
At Starck Uberoi, we know of the devastating effects medical delays can have on the victim’s life. Our experienced and empathic team of solicitors review each case with understanding and care to provide our clients with the right advice for their situation. We work with the patient or their family to pinpoint any unnecessary delays in diagnosis, referral or treatment, and work from there to determine what effect these delays have had on the patient’s recovery. Contact us on 020 8840 6640 if you would like to find out more.
What is Medical Negligence?
Medical negligence is defined as when a healthcare professional (including GPs, surgeons, dentists and specialists) fails to provide sufficient care, resulting in preventable harm to their patient. Examples of medical negligence include:
- Delays in referral to a specialist by a GP
- Delays in treatment
- Misdiagnosis
- Mistakes during surgery (such as foreign objects being left in the body, the incorrect surgery being performed or on the wrong part of the body)
- Infections caused by poor hygiene or insufficient sterilisation
Not every example of medical negligence can be taken to court – it depends on the severity of the effects on the patient and the level of negligence on behalf on the medical professional. However, if you believe you or a loved one has experienced medical negligence, you should contact a solicitor immediately for advice on making a claim. Call us on 020 8840 6640 to discuss your options.
Who can claim?
You can make a claim of medical negligence if there is substantial evidence to suggest that the harm you suffered was directly the result of errors on behalf of the medical professionals responsible for your care.
You can claim on behalf of your child if you believe they were harmed as a result of a medical professional’s failures. If the claim is successful, the compensation will be protected by the court and released to the child when they turn 18. If the child will not have mental capacity as an adult, the funds will usually go to their appointed professional deputy, who will use those funds to provide for the child’s needs. The child will require someone, usually a parent, to act as their litigation friend to manage their court case on their behalf. See the gov.uk website for details on how to apply to be a litigation friend for your child.
You can also make a claim if evidence suggests a loved one unfortunately passed away due to negligence by a medical professional. If you are listed as a beneficiary on the deceased’s will (or under the rules of intestacy if they died without having made one), you are entitled to claim compensation for the suffering and losses of your departed loved one.
In order to make a claim, you will be required to revisit experiences which may be traumatic or painful for you. Please bear this in mind when considering your options. Our team are dedicated to treating every case with the utmost respect and aim to get you the closure you need whilst making sure the process is the least upsetting it can be.
How much time do I have to make a claim?
In most circumstances, you will have three years from the date the harm caused by medical negligence was realised.
There are, however, some exceptions to this rule:
- If the claimant was under 18 when the medical negligence occurred
For children, their parent or guardian can make a claim of medical negligence for them any time until their 18th birthday. Any compensation won for the child will then be protected by the court and released when they turn 18. If a claim has not yet been made before the claimant’s 18th birthday, the claimant has until their 21st birthday to make a claim.
- If the claimant temporarily lacked mental capacity
In this case, the claimant has three years to claim medical negligence beginning from when they regained mental capacity.
- If the claimant dies during the three-year claim period
The deceased’s estate will then have three years from the date of the claimant’s death to claim compensation.
Although three years may sound like more than enough time, it is best to contact a solicitor as soon as possible if you are considering making a medical negligence claim. You will know if you are eligible to claim and will then have plenty of time to consider your options and gather any evidence required.
How long do claims take to make?
Medical negligence claims may take longer to make due to the complexity and the information required to prove that the injury or illness was made worse thanks to the mistakes of a medical professional. Therefore, we recommend you contact a solicitor as soon as you think you or a loved one has experienced medical negligence.
What do I need to make a claim?
Some examples of useful evidence include:
- Medical records– These are one of the most important pieces of evidence you will need to make a claim. Medical records help track the course of your treatment and highlight any avoidable delays or failures made by the professional responsible. Your solicitor can obtain these for you only at your request and medical practitioners are obligated to provide them within a month.
- Expert reports– Expert reports are written by a medical expert which will detail in what ways your treatment by a healthcare professional lead to further harm. If you are claiming on behalf of a deceased love one, the coroner may be contacted and an inquest may be reopened to determine whether their death was avoidable
- A witness statement– Put simply, this is a written statement by you which explains what happened in your own words. Supplying dates helps point out any delays in your treatment which may have had a detrimental effect on you and mention of repeat appointments can show if your concerns were not listened to. The more detail you can provide, the more likely you are to be able to make a case.
- Financial evidence– While your financial losses may feel like the least of your concern, you are likely to receive more compensation if you have proof of the ways in which medical negligence impacted you financially. This can include things like receipts, bank statements, invoices and loss of earnings from additional time required off (not including the time taken off for the initial illness or injury).
How do I make a claim?
While the NHS normally provide a good standard of healthcare, sometimes mistakes can be made. Those mistakes can potentially have life-changing effects on the patient’s life, which is why it is still worth making a claim where there is a chance to.
Firstly, while you do not have to use the NHS complaint system, it can help increase your understanding of what happened, explaining if and where there was a reason for any delays or mistakes. Making a complaint through the NHS will not affect your right to claim and you are not required to have done so before contacting a solicitor.
When you instruct your solicitor, they will discuss with you the ways in which medical negligence has caused you physical and emotional pain, as well as financial losses. They will then use the information you provide to create an estimate for the amount of compensation you may be entitled to. If you decide to proceed with legal action, they will request the right to gather evidence such as medical evidence, then work with you to identify where the healthcare professional responsible for your care failed to provide for you.
Once this is complete, they will send what is known as a letter of claim to the practice or practitioner explaining your case and where they were at fault. The practice or practitioner is obligated to respond to this within four months. If they accept they are liable, your solicitor will work with them to negotiate a reasonable amount of compensation, taking into account your financial losses and medical advice. But, if they refuse or an agreement cannot be made on the value of your claim, you may have to take the case to court – this only happens in around 2% of cases, however.
How do I claim against private healthcare practices?
The process is similar for those claiming against a private company, but it does differ in some ways. Cases largely depend on the conditions listed in the contract the patient signed with the healthcare provider. You should check in your contract whether the provider guaranteed any particular outcomes from your treatment – if so, it may be better to base your claim around the terms written in the contract, if they have not been met.
It is also important to remember that even if you received treatment under the NHS, you may need to check whether that treatment was provided by the NHS or by a separate company contracted by the NHS. You must ensure your claim is being made to the right practitioner or company, otherwise you may end up wasting your time.
How we can help
Starck Uberoi promises clients an individualised service to provide support which is best regarding each case. Our team of personal injury solicitors are approachable, productive, and committed to helping our clients reach the outcome they want as smoothly as possible. We work on a “No Win, No Fee” basis and will support you through every step of the process.
For more information, please visit our Personal Injury page, or to book an appointment please call 020 8840 6640. Our offices are based in Brentford, Ealing, Chiswick, Canterbury and London Victoria. For an appointment at any of our offices, email us at solicitor@starckuberoi.co.uk or call 0208 840 6640.
