When you seek medical help, it is not unreasonable to hope that your doctor and any other medical professionals involved in your care, will do all the necessary tests, seek your permission before major treatments or surgeries (unless it’s an emergency), and ensure your safety as a patient. However, unfortunately, this is not always the case.
If doctors or hospitals don’t meet these expectations, they might be legally responsible for any harm caused. This is called medical negligence.
At Lawhive, our medical negligence solicitors are on hand to help if you or a loved one has been failed by a medical professional. Our legal experts can help you make a claim for compensation if mistakes were made during your care. Get a free case assessment from our legal assessment team to find out more.
In this guide, we will answer frequently asked questions about medical negligence claims including:
What is medical negligence?
Medical negligence, also known as clinical negligence, is when the care you receive from medical or healthcare professionals falls below the expected standard, leading to negative consequences for your health. These negative health consequences can affect you physically or mentally.
Medical and healthcare professionals have a duty of care to their patients, including choosing the right treatments and giving that treatment carefully. If a medical professional fails in any of these duties, you might have a right to ask for compensation by making a medical negligence claim.
What is "causation" in medical negligence?
Causation is a legal term that relates to how much harm results from negligent treatment.
For example, if someone experiences a delay in getting a diagnosis for a fractured bone and they have complications as a result, the causation would be demonstrated by connecting the delayed diagnosis to the increased harm and complications in the bone’s healing process.
What can be classed as medical negligence?
There are lots of types of medical negligence cases, such as failing to diagnose a condition, not taking action on abnormal test results, equipment malfunctions, and injuries during surgery.
In 2022-23 there were 13,511 new cases made against the NHS, the top four categories of these being related to:
Each clinical negligence case is unique, however certain causes are more common than others.
Failure or delay in treatment
When treatment is not provided promptly or there is a delay, a patient’s condition can worsen, requiring additional treatment or rehabilitation. In some cases, irreversible damage may occur, especially with progressing conditions.
Example: Sarah notices she is experiencing persistent pain and fatigue. She visits her GP who orders some tests. However, unfortunately, due to a backlog in the healthcare system and delays in processing, the results take much longer than usual. During this delay, Sarah’s condition gets worse. When the results finally come through, Sarah discovers she has advanced-stage cancer. If the diagnosis had been made sooner, the treatment options and chances of a positive outcome would have been significantly better.
In this scenario, the delayed diagnosis led to a more severe stage of the disease, requiring more aggressive treatment and reducing the likelihood of a full recovery.
Bacterial infections can be life-threatening if not treated properly, especially if they lead to sepsis. Bacterial infections can be caused by a break in your skin, like a cut, insect bite, or surgical incision. Common bacterial infections include urinary tract infections (UTIs), dental abscesses, and those caused by MRSA, Group B Streptococcus, and C.Difficile.
Bacterial infections can also develop in open wounds like pressure ulcers, which occur due to prolonged pressure or friction on the skin. For instance, older individuals or those with disabilities who are bedridden might develop sores in areas with continuous contact with a bed or chair.
Medical negligence cases related to bacterial infections often involve inadequate hygiene in healthcare facilities like hospitals or care homes, or failure to promptly diagnose and treat an infection.
Example: In May 2019, the Metro reported that nine-month-old Lucas Thomas Munslow died from bacterial meningitis just 24 hours after being misdiagnosed with tonsillitis. In an inquest into Lucas’s death, the senior coroner for North Wales East and Central said staff at the hospital had shown ‘poor practice.’
Birth defects and injuries
Injuries during childbirth to both mother and child can have lasting, sometimes, lifelong impacts. Cerebral palsy is one such outcome. This happens when a baby’s brain is harmed during labour and it results in lifelong challenges such as difficulty walking, weak limbs, issues with speaking and swallowing, and learning disabilities.
Furthermore, various birth defects can stem from factors like maternal infections transmitted to the baby, insufficient oxygen reaching the baby’s brain, injuries during a c-section, or damage to the spinal cord.
Example: During labour, a medical team fails to monitor a baby’s oxygen levels adequately. Due to this oversight, the baby experiences oxygen deprivation leading to cerebral palsy. As a result, the child may face challenges in motor skills, speech, and learning. The family may then explore legal options, alleging that medical negligence during childbirth resulted in these long-term consequences for their child.
Transfer of infection
Cross-infection happens in a healthcare setting when proper infection control measures are not in place or followed. Medical staff moving from one room to another can transfer an infection between patients if proper precautions aren’t taken, such as hand-washing.
While the impact of an infection on one patient may not be life-threatening, it can be deadly to another individual with a weakened immune system or undergoing treatments such as chemotherapy.
Example: A nurse is caring for Patient A, who has a common respiratory infection. Without following proper infection control measures, the nurse moves to attend to Patient B in the next room, who is undergoing chemotherapy. Due to the nurse’s unintentional transfer of the infection, Patient B, with a weakened immune system becomes susceptible to severe complications, making their situation more critical.
Delays in treatment
Back in April 2023, it was widely reported that seven million people in England were waiting for treatment on the NHS. Unfortunately, when a necessary surgical procedure is postponed or delayed, it can exacerbate the underlying medical condition or injury. For example, studies show that for each month patients with breast, bowel, or head and neck cancers have their treatment delayed, the chances of them dying from the disease increase by 6-13%.
The NHS is currently grappling with a surge in medical negligence cases caused by long waiting periods for surgeries and treatments, aggravated (but not necessarily directly caused by) the shutdown of services during the COVID pandemic. Longer waiting times not only inconvenience many individuals but, for some, the prolonged delay may lead to deterioration in their condition, causing harm that could have been prevented with timely treatment.
Example: Jon, a 45-year-old man, had been experiencing persistent pain in his knee, limiting his mobility. His doctor recommended a knee replacement surgery to alleviate the pain and improve his quality of life. However, due to a surge in COVID-19 cases, non-urgent surgeries were postponed. As a result of the delayed operation, John’s knee condition worsened over time. What could have been a routine procedure turned into a more complex surgery, and John experienced prolonged discomfort and reduced mobility.
How do I make a medical negligence claim?
Following our initial case assessment of your clinical negligence claim, our team of medical negligence experts will assess the details of your situation to determine the likelihood of success. Once this assessment is complete, your case will be assigned to one of our solicitors, who will guide you through the available funding options (such as Conditional Fee Agreements) and provide an estimate of the expected timelines.
At this point, we will also request your medical records, which will be shared with independent medical experts for a thorough review of your case.
Throughout the process, we will keep you informed each time we receive new evidence, explaining its impact on your claim. If the medical evidence supports your case, we will initiate legal proceedings on your behalf.
How difficult is it to prove medical negligence?
Proving medical negligence can be challenging and depends on the specifics of your situation. To build a successful clinical negligence compensation claim, you must be able to show that:
The medical professional had a duty of care towards you;
There was a breach of that duty of care;
Avoidable harm followed as a result.
In short, you must prove both the breach of duty and care and causation, meaning the breach directly caused the injury or loss in question. It’s important to note that breach of duty and causation don’t always align.
Harm can occur without negligence (e.g. a patient might experience an allergic reaction to a prescribed medication, but the healthcare provider followed proper protocols, and the adverse effects were unforeseeable), and a medical professional can breach their duty of care without causing harm (e.g. a healthcare provider fails to communicate potential side effects of a medication adequately, however, the patient doesn’t experience harm as a result. The provider still breached their duty of care by not providing comprehensive information about the treatment, despite the patient not experiencing adverse effects).
To increase your chances of success in making a clinical negligence claim, it’s highly advisable to consult with a specialist medical negligence solicitor.
At Lawhive, we offer a free case assessment that looks at your eligibility to make a claim and helps you understand your next steps and how we could help you on a Conditional Fee Agreement basis. Speak to our legal assessment team today to find out more.
How do I prove medical negligence?
The success of a medical negligence claim depends on proving that you suffered harm due to medical mistakes. This involves:
Checking your medical records
Getting a copy of your medical records is important for your legal team to prove medical negligence. These records contain details about your care, including notes from specialists. If a doctor didn’t meet their duty of care, the evidence from your records can show what went wrong and who was responsible.
Support from independent medical experts
In many medical negligence cases, your solicitor will ask an independent medical expert to review your situation. It is the job of these experts to give an unbiased assessment of the quality of care you receive and share their opinions in an official report.
If the evidence supports your case, your medical negligence solicitor can send these proven claims of negligence to the healthcare organisation’s legal team. If the expert thinks the care you received was reasonable, your solicitor might suggest that you don’t continue with the claim.
Records of expenses related to the negligence
Your solicitor may need receipts, bank statements, and other documents to assess the financial settlement required for past and future expenses related to your injury. This could involve lost income from being unable to work, as well as costs for ongoing medical care and travel expenses for regular medical appointments.
In certain situations, family members might be asked to provide witness statements, especially if you experienced periods of impaired consciousness due to a procedure or prescribed medication, or if the patient’s mental capacity has been otherwise affected.
Given that recalling all the details during instances of medical negligence can be challenging, gathering multiple witness statements helps create a better, fuller understanding of your medical treatment, strengthening your claim.
Photographs can also provide a visual record of injuries or medical conditions, showing the severity and progression over time. For example, if a patient develops bedsores during a hospital stay, regular photographs can demonstrate the evolution of these sores and their worsening condition.
Photographic evidence can also sometimes establish a timeline of events, which can be particularly relevant in cases involving surgical procedures or post-operative care. Or, in cases where the medical environment or facilities contribute to negligence, photographs can illustrate conditions such as unclean environments, faulty equipment, or inadequate patient care resources.
Gathering detailed information about your treatment and its impact is very important to strengthening your medical negligence claim. Here are a few tips to help you collect evidence to prove your claim:
Keep a record of medical appointments, treatment provided, and advice given;
Start recording information from the moment you suspect negligent medical treatment;
Save receipts and invoices related to expenses such as travel expenses, the cost of private treatment, therapy, and expenditure on equipment or aids;
Identify other expenses such as lost earnings due to time off work.
A proactive approach when documenting your journey will strengthen your overall case and ensure that all relevant expenses are considered when seeking compensation for harm caused by negligent medical treatment.
What is the Bolam Test for medical negligence claims?
The Bolam test helps to assess whether medical professionals have fulfilled their duty of care, making it a key tool in deciding if there was negligence.
The Bolam test considers whether others in a similar position would have taken the same actions with the same expected outcome. If it’s demonstrated that the actions align with common practice among professionals, the case is likely to fail.
The Bolam Test originated from the 1957 case of Bolam vs Friern Hospital Management Committee, involving a patient named Mr Bolam who underwent Electro Convulsive Therapy (ECT).
Mr Bolam claimed negligence, citing the absence of muscle relaxation, lack of restraint, and failure to warn of risks. The case failed as it aligned with medical protocol at the time, where patients weren’t routinely informed of all the potential risks. This led to the establishment of the Bolam Test.
While the basics of the Bolam Test have endured since 1957, adaptations reflect medical advancements. Bolitho vs Hackney Health Authority (1977) amended the test, stating that if professional opinion lacks logical support, it can be deemed unreasonable. Furthermore, Chester vs Afshar (2004) and Montgomery v Lanarkshire Health Board (2015) refined the law regarding patient information, emphasising the need for informed decisions to prevent injury during medical procedures.
While the Bolam test provides a framework for understanding the duty of care and potential medical negligence, it can be a bit ambiguous. To address this, organisations like NICE (National Institute for Health and Care Excellence) are increasingly publishing comprehensive guidelines on best practices and duty of care. These guidelines aim to assist medical professionals in safeguarding both themselves and their patients.
How much can I claim for medical negligence?
The compensation you may be eligible to claim for medical negligence depends on several factors including:
The nature and severity of your injury or illness (i.e. more severe or debilitating conditions may result in higher compensation);
How the injury or illness affects your daily life;
The impact on your current and future employment;
Financial losses (medical expenses, lost earnings, etc) and non-financial losses (pain, suffering, emotional distress);
Rehabilitation, support services, or ongoing care required due to the negligence;
Legal costs associated with pursuing a medical negligence claim.
Between April 2022 and March 2023, the NHS spent £2.6 billion settling clinical negligence claims according to the annual report released by NHS Resolution.
What can you claim compensation for as part of a medical negligence claim?
When determining the compensation you deserve for medical negligence, our clinical negligence solicitors take into account:
Expenses such as travel expenses for medical appointments, costs of medical equipment, and items purchased to support your daily living, such as home adaptations;
Loss of earnings due to inability to work;
Future loss of earnings;
Costs associated with necessary surgery or medical procedures;
Current and future care costs;
Pain and suffering.
When you claim medical negligence, this information is used to conduct a thorough assessment, ensuring that all relevant aspects are considered to reach a fair and just compensation settlement.
At Lawhive, our goal is to use this assessment to secure compensation that aligns with the specific circumstances of your case, taking into account both the tangible financial losses and the impact on your well-being, daily life, and future.