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Making clinical negligence claims

12 Aug 2010

Many thousands of people receive medical treatment every single day. In the vast majority of cases this treatment is appropriate and effective. Unfortunately things sometimes go wrong and the patient ends up worse off. Often the patient simply wants an explanation, an apology or reassurance that steps have been taken to reduce the risk of someone else suffering in the same way.

What can you do?

At present the options are limited to either making a complaint through the NHS Complaints Procedure or considering legal action.

The NHS Complaints Procedure

A patient or a relative has the right to send a written complaint to the hospital’s Chief Executive or the GP Practice Manager within 6 months of the treatment. The health care provider has a duty to undertake an internal investigation and provide a written response to the complaint. Sometimes there will be a meeting between the patient and a representative of the hospital or practice. Sometimes an independent medical expert will review the treatment provided, prepare a report and make recommendations.

Legal Action

To bring a successful claim for compensation the patient must show that the person giving the treatment has breached what is known as a “duty of care” owed to the patient and the patient must have suffered actual harm as a result of that breach. In the medical scenario it is accepted that a duty of care exists. The patient must show that the standard of treatment received fell below that to which they were entitled. In many cases the most difficult obstacle for the patient to overcome is showing that the breach of duty caused their injuries. There might, for example, have been a delay in diagnosing cancer, but if the delay didn’t actually make any difference in terms of treatment and survival, the patient fails to establish a causal link and the claim will fail.

A patient who wishes to consider a claim for compensation in respect of medical treatment should consult a solicitor experienced in these cases. Hay & Kilner has a team of solicitors dedicated to helping people bring successful medical negligence claims. David Bradshaw is positioned in the top rank of leading clinical negligence solicitors in the North East by Chambers Guide to the legal profession 2011.

Hay & Kilner is one of a limited number of firms to have a clinical negligence franchise. This means that they specialise in this area of the law and are able to act under the legal aid scheme. For patients not eligible for legal aid there are other ways of funding a claim – many people have insurance for legal expenses. Alternatively a solicitor may act on a ‘no win no fee’ basis if the medical evidence supports the claim.

Clin neg team 10.06

Investigating the claim

The solicitor will obtain copies of the patient’s medical records and then arrange for an independent medical expert to review them. The expert, using themself as a measure of the reasonably competent health professional, will express an opinion as to whether or not there has been a breach of duty, which has caused injury. If the expert evidence is supportive, the solicitor will write to the health care provider and set out the nature of the claim. Their representatives will investigate the claim and indicate whether or not they intend to defend it. Sometimes it will be possible to negotiate a settlement at this stage. If there is no agreement, the solicitor will arrange to issue court proceedings and ultimately a judge will decide whether or not the patient is entitled to compensation and how much they should receive. Only a very small number of cases are actually decided at trial.

It is important to remember that sometimes treatment can go wrong without the health professional having been negligent.

If you think you may have a medical negligence claim contact David Bradshaw, Clare Thompson or Helen Morland at Hay & Kilner on 0191 232 8345 or email clare.thompson@hay-kilner.co.uk

Hay & Kilner is one of the few firms in the North East with a legal aid franchise for clinical negligence.

Please note:
This article is not legal advice; it is intended to provide information of general interest about current legal issues. Please contact us to discuss how the contents of the article may affect you.