Although often criticised and its future at times seems uncertain, the National Health Service of the UK remains the envy of most other nations around the globe. British people are fortunate to live in a country where medicine is practiced to the highest standards by competent and caring professionals. That said, errors are occasionally made at the expense of a patients’ health.

Being the victim of any form of medical negligence is a distressing and traumatic experience. A victim may be worried about the future implications that the illness contracted or injury sustained may have on his or her career, family and, of course, their physical health and well-being.

In a very small number of cases, some families may even be mourning the loss of a loved one following an incident of surgical or medical negligence.

Money is no compensation for bereavement and as any personal injury lawyer can confirm, when the legal action has been completed the majority of clients will remark that they would rather have their health back than what may well be a very large financial settlement.

The harsh reality, however, it that ill health or tragedy can also place significant financial burdens on victims of medical negligence and their families as earning power may be dramatically reduced or even extinguished completely.

When a patient has suffered injury, or contracted an infection or illness due to the negligence of a surgeon, doctor, dentist or other healthcare professional there may be grounds to justify a successful personal injury compensation claim.

What is ‘Medical Negligence’…’Clinical Negligence’…’Doctor Negligence’…?

From a lawyer’s perspective, ‘medical negligence‘, ‘hospital negligence’, ‘clinical negligence’, ‘surgical negligence’ or indeed ‘dental negligence’ are little more than sub-categories of the same legal discipline.

While ‘hospital negligence’, for example, may refer specifically to personal injuries arising from negligent hospital care it effectively falls under exactly the same legal category as ‘clinical negligence’ or ‘medical negligence’. This is also true for dentistry errors. A dentist is a medical practitioner and as such (in general terms) the same law of negligence is applicable to the work of dentists as to that of doctors.

Medical Negligence and Hospital or Clinic ‘Accidents’

As noted in the preceding paragraph, the terms “hospital negligence”, “clinical negligence” and “medical negligence” are effectively interchangeable.

It is however important to realise that not all injuries sustained in a hospital, clinic, dental or GP’s surgery are legally defined as “medical negligence” or otherwise.

Take for example a trip or fall that happens in a dental clinic,which is clearly due to the negligence of maintenance staff employed by the dentist. In normal circumstances it is not in fact an example of ‘dental’ or ‘medical negligence’.

This does not mean, however, that a patient who suffers such an injury cannot make a successful compensation claim; only that from a legal perspective it does not fall under the specialist category of medical negligence but is in fact a ‘standard’ personal injury claim, no different to an injury sustained due to faulty machinery at work or a fall in a supermarket.

‘Medical negligence’ refers directly to negligence in the actual healthcare a patient received from a doctor, nurse, dentist or other such professional who had a duty of care towards them.

‘Hospital’ or ‘Surgical Negligence’

Many instances of medical negligence occur in hospitals and as such it is somewhat understandable that people commonly refer to them as ‘hospital negligence.’

‘Hospital negligence’ and ‘Medical negligence’ are, legally speaking at least, one and the same thing. Some medical errors do, however, more typically occur in hospitals than elsewhere. A most obvious example would be the negligence of a surgeon in theatre.

It is not possible to provide an exhaustive list of every possible cause of action for claims of hospital or surgical negligence however some of the more common examples are as follows:

  • Failure to obtain the patient’s medical history
  • Negligent examination of the patient or failure to note all of his symptoms
  • Unwarranted delay in diagnosis of illness or injury
  • Failure to perform investigations (e.g. X-ray, scan, blood test)
  • Failure to react to test results
  • Negligent performance of medical procedure
  • Negligent administration of medication
  • Negligent follow up care
  • Failure to advise of the risks associated with medical procedures to patient in advance
  • Surgical errors
  • Failure to provide adequate post-operation care

Medical Negligence and Birth Injuries

The birth of a child is, ordinarily, a joyful occasion in the life of any family. Although the UK is lucky to enjoy the services of highly trained and competent doctors, nurses and midwives, some babies are nonetheless born in circumstances that are not ideal.

It is important to note that some birth defects are entirely unavoidable. Others, however, may be due to negligence on the part of the medical team that attended the mother during her labour.

When an injury suffered by a baby during birth was indeed caused by medical negligence, that child’s parents may be entitled to make a claim for compensation on his or her behalf.

Sadly, some birth injuries result in the death of the child. In such tragic circumstances parents could be entitled to claim damages if their loss was caused by the negligence of the medical team.

Dental Negligence

As explained above, ‘Dental Negligence’ is a sub-category of medical negligence and as medical professionals, dentists, just like doctors, have a legal duty of care towards their patients.

This means that a dentists have an obligation to provide correct and appropriate treatment to those in their care.

The vast majority of British dentists provide excellent care to their patients however when that care falls below those high standards a personal injury compensation claim for dental negligence may be possible.

It is difficult to provide a definitive list for causes of action for a dental negligence compensation claim but some common examples include the following:

  • Wrong tooth extraction
  • Negligence in the administration of anaesthetic
  • Damage to lips
  • Orthodontic surgeon negligence
  • Inadequate root canal therapy
  • Failed implants
  • Failure to manage and treat decay
  • Inadequate fillings
  • Inadequate crowns
  • Damage to tongue
  • Failing to manage gum disease (periodontal disease)

Liability

Medical negligence is similar to any other type of personal injury law regarding the pre-requisite that the injury sustained or illness contracted must result from the actions of a person group or company which had a duty of care towards the claimant at the time of and in the circumstances of the accident or incident and that they acted negligently in the performance of that duty.

Clearly, doctors, nurses, dentists and other healthcare professionals owe a duty of care to patients. Claimants should, nonetheless, be aware that it can often be difficult to prove negligence on the part of a doctor even where an injury was sustained, an infection contracted or a misdiagnosis made.

Negligence

For a successful medical negligence compensation claim, the court must be convinced ‘on the balance of probability’ that the patient’s treatment was negligent and that this negligence either caused or contributed to the patient’s injury or illness.

Unlike criminal law cases in the United Kingdom where the accused’s guilt has to be proven ‘beyond a reasonable doubt’, a civil court (where medical negligence are brought) can find in favour of the party whose story is the most likely version of events, which is a much lower burden of proof that the criminal equivalent.

Clients often incorrectly assume that the sustaining of an injury, contracting an illness or the aggravation of any existing medical problems while under the care of a medical professional means that the treatment received was therefore ‘negligent’.

This is not in fact the case. Some injuries are unavoidable and they cannot be blamed on the doctor or dentist. Even when better care could have been envisaged, or the medical team did indeed make some errors, it may well be the case that the subsequent health problems were in fact inevitable.

In circumstances such as these a compensation claim for medical negligence will be unsuccessful.

“How negligent does the doctor have to be?”

‘Negligent’ is a word that is used in everyday conversation but also in a more specific legal sense. The meaning of the word when employed by non-lawyers can be rather subjective; an action that one individual calls negligent may be labled “a bit careless” or naive by another. It is therefore important to define what exactly is meant by ‘medical negligence’ under the law of England and Wales.

British law on the standard applicable in cases of medical negligence has been largely defined by the cases of Bolam vs Friern Hospital Management Committee [1957] and Bolitho v. City and Hackney Health Authority [1997] which basically established the principle that a court must ask whether a normal competent doctor would have acted in the same manner or a similar manner to the defendant doctor.

What this means is that even where the doctor’s actions caused, in whole or in part, the claimant’s personal injury, his or her actions may not in fact be judged negligent if it can be shown that they were the ‘reasonable’ and logical actions of a medical professional in all of the relevant circumstances. As a consequence even when a doctor or dentist has made an error, as long as other dentists or doctors could have made the same decision and that that decision was more or less a reasonable and logical one, the error might not actually constitute medical negligence.

Injury or damage

For any personal injury claim (be it one involving medical negligence or otherwise) to be successful, the claimant must have suffered some type of injury or contracted some type of illness as a consequence of the negligent treatment administered.

Even when the medical treatment administered has been clearly negligent, compensation can only be awarded if the patient suffered because of it.

Time periods for starting a claim for medical negligence

The normal time limit for making a personal injury claim in Britain is three years after what is known as the “Date of knowledge.” The date of knowledge is the date on which the injury was sustained or the illness contracted, or when the claimant became aware of the injury or illness. Other than a very limited number of exceptions, the right to claim for compensation under UK law is lost forever precisely three years after the date of knowledge.

In some cases of medical negligence, e.g. an illness that went unchecked due to misdiagnosis, the date on which the claimant’s cause of action occurred (i.e. the medical practitioner’s negligence) may be difficult or even impossible to clarify. In cases such as these the ‘date of knowledge’ is actually the date on which the claimant became aware of the illness or injury and he or she will therefore have three years after that date to begin legal proceedings for compensation.

Time periods relating to children

When a minor has suffered as the result of medical negligence the ‘date of knowledge’ of the injury is in fact his or her 18th birthday i.e. the three-year limitation time period does not start to run until the claimant reaches majority.

Thereafter, under the current UK law, the injured party, who would be by now an adult, has three years within which to issue court proceedings. Alternatively, a child claimant can commence legal proceedings for compensation before celebrating their 18th birthday provided a parent or guardian acts as ‘next friend’.

What if the doctor is not totally responsible for my injuries?

Clearly, people go to a hospital in the first place precisely because they are already suffering from an illness or injury. It is therefore evidently possible that the initial injury, such as one sustained at work (or even an illness e.g. food poisoning in a restaurant), was directly caused by the negligence of another party.

What happens if the medical staff provide negligent treatment that exacerbates the initial problem? In such circumstances a ‘percentage’ of the blame can be attributed to the two or more parties who are at fault for the claimant’s injuries and so the liability is shared between several defendants on a percentage basis.

How is the value of a medical negligence case assessed?

Type of injury

Injuries or illnesses caused by negligence are valued regarding their seriousness and whether they require objective proof, such as expert diagnosis, to be believed.

Equally, the permanence and persistence of the injury are important factors.

Prognosis

If it is evident that symptoms of the injury suffered or illness contracted will be long-term or permanent the amount of compensation that can be expected will rise. The injured person’s age is also a very significant factor. For a permanent injury, the same injury may attract a higher settlement value for a younger claimant than an elderly one. To put it in a nutshell, this is because a younger person will probably have to live with the injury for a much longer period of time.

Take this very simple example; a 22 year old man who suffers an injury due to the error of a surgeon, might have to live with the consequences of that injury for 60 years or more. A 77 year-old man who suffers a similar injury, in all probability, will not have to cope with his injury or disability for such an extended period of time.

Medical History

A claimant’s medical history and records are a significant factor in assessing a claim.

A prior history of similar or related injuries and of treatment of the same area of the body this can affect a personal injury claim significantly. The key question for the court is whether the medical negligence of the subject healthcare professional was the primary cause of the injury or was only an aggravating factor in it?

Impairment of quality of life

Work is not the most important thing in life and as such any claim for medical negligence personal injury compensation will take impairment or loss of quality of life into account when value is assessed. This is a very personal assessment for the individual claimant as each person’s passions and interests are different; an injury to the thumb for example could be more debilitating in this respect if it can be proved that the claimant was a talented amateur pianist prior to the injury.

Severity and persistence of pain suffered

The purpose of personal injury compensation, be it for medical negligence or otherwise, is to compensate the victim for his or her injury and related suffering. Naturally, the greater the pain suffered and persistence of same, the greater the amount of compensation awarded is probable to be.

Shared Liability and Contributory Negligence

As mentioned above, even when negligent medical treatment has been administered the cause of injury or illness is not always evident. In many situations one party e.g. the doctor or dentist who provided treatment, may be 100% at fault. It is also true, however, that two, or even numerous, factors may have contributed to the subject injury. Moreover, one of the causal factors could even have been the victim’s own negligence. How then should blame be apportioned? Can the claimant expect to receive any form of compensation if he or she contributed to their own downfall?

“Contributory negligence”, in UK law, is the recognition that an injured person contributed to their injury by acting negligently when faced with the evident and known conditions of the situation.

In medical negligence cases this could include circumstances where the claimant worsened his or her illness or injury by neglecting to co-operate fully with the follow-up treatment provided (e.g. missing appointments or failing to take prescribed medication) when that care might have cured or helped to heal the damage sustained.

When compared with the medical professional’s negligence, the extent of contributory negligence could defeat the claimant’s case (i.e. the claim will be unsuccessful) or reduce the amount of compensation to be awarded.

Medical special damages following negligent medical care

Ordinarily the costs of any specialist medical treatment that a victim requires, or will require, due to the injuries sustained or illness contracted due to the negligence of the relevant healthcare professional can be compensated for in full or in part.

Loss of earnings

Loss of earnings is in fact a separate, additional, aspect to the medical negligence personal injury claim. This often causes great confusion for clients. Claimants regularly compare their settlement to that of a friend or an acquaintance who received “£12,000 more than me!” for an injury or illness that appears to be almost identical to their own.

Comparing one settlement to another without having access to all of the facts in evidence is, obviously, a mistake. The version of events that is talked about at work or at the gym can differ greatly from the reality.

Even allowing for exaggeration and misinformation, the difference in overall settlement figures could simply be due to a significant loss of earnings which the other claimant was entitled to because of a protracted absence (or even a predicted absence) from work.

The amount of money awarded for this aspect of the claim corresponds to the individual’s earning power or indeed potential earning power. When it comes to loss of earnings, the gravity of an injury or illness itself is relevant only insofar as it inhibits that person from earning a living. Personal circumstances are an important factor, and different injuries can have entirely different consequences for the claimant depending on his or her line of work e.g. a hand injury to a tradesman or a sight-restricting injury to a bus driver.

Please note that every case of medical negligence is unique. If you have suffered an injury or developed an illness due to a doctor’s negligence you may have a valid personal injury claim. You are advised to discuss all of the points raised in the preceding article with your solicitor as soon as possible.