Clinical Negligence

What is clinical negligence?

Fortunately health care in this country is normally very good and we can trust health professionals. But sometimes things do go wrong. Clinical negligence is when poor health care causes pain, injury, mental problems and even death.

Can I claim for compensation if this applies to me?

Yes, but you will need specialist legal advice because you need to prove two quite separate things: fault and causation.

What do you mean by you must prove fault?

If you can prove that your treatment was negligent, you also have to prove that as a result you have suffered loss or damage.

You must show clinical negligence. This means you have to show that the clinical care you were given was below the standard you can expect from a health care professional.

If there are differing medical opinions over your care, then the person who treated you will have to show they acted in a way other responsible practitioners would have done, even if many would have done something different.

It is difficult to prove negligence because there is often a minority of doctors who would think a particular treatment was suitable.

You will need to get medical evidence from an expert to show that:

Your treatment was below standard and
There isn't any responsible medical person who would think your treatment was acceptable.

What do you mean by you must prove causation?

If you can prove that your treatment was negligent, you also have to prove that as a result you have suffered loss or damage.

You have to show that there is more than a 51% chance that the treatment caused damage to you. This is actually quite hard because you have to work out what the outcome would have been if your treatment hadn't been negligent.

What should I do if I think this applies to me?

There are strict time limits for making a clinical negligence claim - you must start court proceedings within three years of the date of your injury or when you became aware of it. So you should get specialist legal advice as soon as possible.

What happens if I want to make a claim?

You will need to give a detailed statement about your medical treatment and get full copies of your medical records - including any x-rays. You will also need to get expert opinion on your care and on any damage you believe was caused by the negligent treatment. Most clinical negligence claims are settled before going to a trial, but some aren't, so it is important to get all the ground work done first.

Do I have to complain using legal proceedings?

If you don't want to go through legal proceedings, you can make a complaint using the complaints procedure, whether your treatment was on the NHS or private. Trusts and GP practices have their own procedures, but they are very similar. You can make a complaint about poor service, poor treatment, rudeness, discourtesy or a clinical error.

Minor complaints should be dealt with by the person you complain to, but more serious ones will go to a complaints manager. You can complain in person or in writing and you can get help from a local patient liaison officer.

The complaints manager must reply in writing or arrange a meeting. Their reply should include an explanation and, if necessary, an apology. They will also set out the steps taken to stop the same thing happening again.

What if I'm not happy with the result of my complaint?

If you aren't happy with the response, you can ask the Healthcare Commissioner to carry out an independent review. You will need to explain why you are dissatisfied and if they decide to investigate, they will send you a copy of their report.

When can I make a complaint?

You have to make a complaint within six months of the incident that caused the problem, or within six months of discovering the problem, providing that is within 12 months of the incident happening. If you complain after this time, the health provider may decide not to investigate.

Are there any other ways of dealing with my problem?

Sometimes problems can be sorted out by mediation. This is a less formal process where you will meet the health provider with a mediator present. You will try to find areas of agreement, and where issues are disputed, you can discuss them fully with both sides taken into account.

This fact sheet will give you some basic information about clinical negligence. You can also listen to it online or download it onto an MP3 player.

Please be aware that this is not legal advice and if you are concerned about any of the issues mentioned you should speak to a lawyer.

You can contact Russell Jones & Walker's solicitors at enquiries@rjw.co.uk.

For more information you can download this fact sheet to read offline or print.