As you may have suffered an injury as a result of a medical clinician’s error, whether that is an error in treatment or a missed/delayed diagnosis, you could be entitled to claim compensation. At Harris Fowler we specialise in getting you the compensation you deserve. This page will set out the elements of the claim we will need to prove and some hints and tips to help your claim go smoothly.
In order to make a claim for compensation following medical negligence you have to prove three things
- That the other party owed you a duty of care
- That the treatment fell below the standard of care expected of them
- That the failure to meet the standard of care has caused you injury.
Duty of care
For the most part this is the easiest part of a claim to prove as the courts have already established that medical practitioners owe their patients a duty to take reasonable care.
This duty includes but is not limited to a duty to
- Investigate a patient’s symptoms by way of history and examination
- Make proper differential diagnoses
- Take appropriate action in protecting health and treating symptoms
- Make appropriate referrals
- Obtain informed consent
- Perform medical procedures appropriately
Breach of Duty
The second part of a claim is to show that the medical practitioner has failed to take such care as is reasonable in the circumstances either by doing something that should not have been done or failing to do something that should have been done.
The courts have established that this standard of care is an objective one and requires that a medical practitioner exercise the skill and care of a reasonably competent member of their profession.
In other words we are required to show that some aspect of the treatment ought to have been done differently and the treatment falls below the standard that might be expected from a reasonable practitioner of that sort. This is often a technical question involving analysis of the standard practice and the guidelines which a particular practitioner should follow. The court will rely upon the opinion of a medical expert who will review your records and will consider the standard of the treatment provided and whether it fell below what was reasonable.
As breach of duty in Medical Negligence claims is a highly technical area of law it is important you seek the advice of a specialist medical negligence solicitor who will be better able to advise you on the facts of your case.
The third and final part of bringing a claim is demonstrating that the breach of duty by the medical practitioner has caused injury. Where a link between breach of duty and injury is proven, you will be entitled to claim compensation for the injury. In addition, you can recover financial losses or expenses incurred as a result.
The Court will rely upon the opinion of medical experts to determine whether the Claimant’s injury has been caused by the alleged breach of duty. A medical practitioner may seek to defend a claim by raising argument that the injury might have occurred for unrelated reasons or would have occurred in any event. These will be technical arguments and the Court will be guided by expert opinion as to whether the injury claimed could and should have been avoided by reasonable treatment.
The value of compensation for injury is assessed according to the circumstances of each Claimant, and will depend upon the nature of the injury and the duration of the symptoms. The Court will consider the degree of discomfort and the extent to which an injury has affected a Claimant’s daily life and ability to undertake and enjoy activities. Awards of compensation will be greater where there will be a lengthy recovery period or where there have been life changing injuries in respect of which remedial treatment cannot be fully successful.
Expert opinion will assist the court in assessing the value of each claim. Expert Reports will identify the injury caused by the medical practitioner’s breach of duty and will assess the Claimant’s condition and symptoms. The expert will then advise as to the prognosis for recovery and will explain the treatment that might be needed to put right what has been done, as far as is possible. The expert will confirm the cost of the treatment needed, so that the cost can be included in the claim.
In addition to compensation for injury and for treatment costs, the claim will include financial losses and expenses relating to the injury such as loss of earnings and the value of any care or assistance required. Expert evidence may be required to assess and evaluate these losses. For example, there may need to be an assessment of the care and rehabilitation needs of a Claimant in the future and an expert report will set out the detail of this to enable the full cost to be calculated and included in the claim put forward on the Claimant’s behalf.
Hints and Tips
If you are thinking of bringing a medical negligence claim, it might be helpful to bear in mind the practical steps that you can take:-
- It is always best to avoid delay. A medical practitioner might successfully defend your claim if it is not started within 3 years of the cause of action arising. It might not be easy to determine when this 3 year limitation period starts to run, particularly when a problem with treatment does not become apparent until much later. Your solicitor will advise you on the specific circumstances of your case but the important thing for you to bear in mind is that you could run out of time to bring your claim and therefore you should seek legal advice as soon as you have a concern about your treatment.
- Keep safe any letters or documents that are relevant to your treatment.
- Hold on to any documents that show your financial losses and expenses, such as receipts, travel tickets, invoices, wage slips or accounts.
- Make a note of any difficulties caused by your injury and any discussion that you have with your medical practitioner about it.
“Harris Fowler are the only ones I would trust. They make everything clear, easy and always deliver total honesty – Thank you to all who worked on my claim.”