Medical Negligence claims explained
Medical Negligence claims are complicated… this article helps you understand the process…
If you want to make a claim for medical negligence there are certain criteria which must be satisfied if you stand a chance of winning compensation. We carry out all enquiries on your behalf but the summary below might assist. Medical negligence and clinical negligence are interchangeable terms and mean the same thing.
In order to successfully pursue a medical negligence claim, you must be able to establish 3 elements:-
The first thing to note is the burden is on a Claimant (the person making the claim) in a medical negligence claim to prove that the medical care that was received fell below the standard to be expected of a reasonably competent and skilful specialist in the particular field in which they were being treated.
This means that before that claim can even begin by the issue of proceedings, it is necessary for a Claimant to receive medical evidence from appropriate medical experts (and more than 1 report may be necessary) in the field which is under consideration, advising that:-
- The treatment actually received by the Claimant fell below the standard to be expected of a reasonably competent and skilful specialist in that field.
- There is no other reasonable body of opinion in that field that would consider the treatment given by the Claimant fell within acceptable boundaries.
- The latter aspect takes account of the fact that there are differing fields of medical thought and providing the way in which the Claimant was treated, fell within a school of thought, that is regarded as reputable, it cannot be said that the treating doctor was negligent.
If a medical expert advises that the treatment was not a treatment which the expert would personally consider reasonable, but that nonetheless, there is another school of thought in the discipline that would consider the treatment acceptable, it would not be possible to proceed with the claim.
Once we have a medical report that identifies negligence in the medical treatment, then it is necessary to show that as a result of the negligent treatment there has been some quantifiable loss of damage.
This means that where an injury occurred from another cause e.g. a non-negligent aspect of the treatment, or alternatively, the initial injury itself with illness, then it will not be possible to succeed in a claim.
Alternatively, the expert may say that some aspect of the treatment was negligent, but that the subsequent condition would have been the same in any event, regardless of any negligence in treatment and, again, it would not be possible to pursue a claim.
General damage and special damages. As a Claimant, you must prove that you are entitled to 1 or both.
These are awarded to compensate the Claimant for pain, suffering and loss of amenity or quality of life. Unfortunately, in this country awards of general damages are very low by comparison to some other countries. They are also by their very nature, arbitrary.
How can pain or suffering be quantified? There are 2 main factors which are taken into account:-
- Duration and severity of the suffering.
- If the case settles by agreement or goes to Court, then lawyers introduce a system based on a precedent i.e. damages awarded for cases involving similar injuries.
These are easier to calculate. They are awarded to compensate the Claimant for any financial loss which has occurred as a result of negligence, i.e. not the result of the original illness or injury.
The financial loss must also be reasonably foreseeable. The most obvious example is a loss of earnings. Other examples include travelling expenses, prescription charges, repair costs etc.
It is important to remember that we can only claim for those expenses that have arisen as a result of the negligence, not the injury itself since you would always have incurred those losses.
Your claim for special damages has to be proven and to do this you need to provide documentary evidence of each item claimed e.g. receipts, letters etc.
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