How do you prove medical negligence?
You must accept at the outset that your belief, however strongly held, that a doctor has been to blame for a medical accident, is irrelevant under the law. Even in the most emotional circumstances a claim will not succeed unless it is proved, on a balance of probabilities (i.e., more than 50%), that
(a) the alleged facts, including the injury and resulting loss, are true; and
(b) that a duty of care was owed to the claimant by the doctor (or other health carer) accused; and
(c) that there was (i) a breach of that duty which (ii) caused or materially contributed to the claimant's injury and loss, ie there was negligence.
Most difficulties arise on (c), proving negligence. Here's why:
Let us assume that you have found an expert or experts who will testify that, in their opinion, your doctor's actions or omissions were incompetent - a breach of the duty of care. Nevertheless, a court will not find negligence established if the accused doctor can show, normally by evidence from his own medical experts, that he acted in accordance with a logical, reasonable body of medical opinion - even if that is a minority opinion.
The claimant who does establish lack of competence must further go on to prove, again by expert medical evidence on a balance of probabilities, that that incompetence caused or materially contributed to the injury and loss. What if the loss was only a chance, say, of recovering from a medical condition? Provided that the chance of recovery was more than 50% the claimant would recover in full.
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These legal rules can make clinical negligence one of the more complex areas of litigation. The legal principles are not particularly difficult, but your claim's fate will probably depend on evidence by eminent clinicians who disagree on clinical practice, a matter of professional judgment. The judgment of a doctor will not be impugned lightly: his professional reputation is at stake and one must recognise that opinions on medical treatment can vary.
Limitation
To further complicate matters, another legal rule which can cause problems in clinical negligence is limitation: claims that are brought late. A clinical negligence action is regarded as a personal injury action and must be commenced within three years of the date when "the cause of action accrued" or the date of the claimant's actual or constructive "knowledge" of the injury.
The situation is usually straightforward in, say, a road accident personal injury claim but in clinical negligence cases the patient is often unaware of the facts, indeed, may not even know of an injury for several years. There have been several judgments - some difficult to reconcile - in recent years but the general principle is: When was it reasonable for you to seek advice from a solicitor?
Your solicitor would know how the statutes and legal decisions affect your case. He or she would try to learn from you the date when you first knew, or should have taken steps to find out,
- that you had a significant injury, ie, serious enough to justify making a claim;
- that your injury was attributable to the conduct alleged to be negligent;
- the defendant's identity.
Special limitation rules apply to children and persons under a disability, for example, brain-damaged claimants. Successful claims in such cases have been brought as late as 30 years after the medical accident despite the obvious difficulties of obtaining evidence.
The court has an over-riding discretion to direct that the limitation provisions should not apply if that would be equitable but, again, the legal principles are not readily understandable by the layman. If your solicitor thinks that there is a limitation problem he or she will move without delay - possibly
under emergency legal aid if you qualify - to issue proceedings to resolve the situation.
Litigating in person
The success record of litigants in person in the field of medical negligence is very poor. In our view, if you wish to make your claim yourself the most practical method, provided the claim arose out of a medical accident in an NHS hospital, is direct to the Chief Executive, NHS Litigation Authority, Napier House, 24-28 High Holborn, London WC1V 6AZ, telephone: 020 7430 8761 www.nhsla.com.
The NHS Litigation Authority [NHSLA] was established in 1995 as an independent organisation to deal with the rising number of individuals claiming to be compensated for alleged negligent behaviour by doctors, surgeons, physicians, nurses and other healthcare workers. The average time taken to deal with a clinical claim under the Clinical Negligence Scheme for Trusts, from notification of the claim to the NHSLA to the date when damages are agreed (or the claim is discontinued), is 1.36 years.
An analysis of all clinical claims handled by the NHSLA since its inception in 1995 shows that 35% were abandoned by the claimant, 43% settled out of court, 1.5% settled in court in favour of the patient, 0.5% settled in court in favour of the NHS and 20% remained outstanding.
Preparing your claim
With the aim of achieving an offer to settle out of court, you would need to prepare your claim in writing with the facts concisely stated in chronological order, with names of hospital(s), health carers, what happened to you, whether you have made a complaint and the result, and why you believe that your injury was caused, or contributed to, by medical negligence. At this stage you might consider leaving the appointment of a medical expert pending the stance adopted by the NHSLA.
In preparing this claim it would certainly help if you had some – at least basic - knowledge of the law.
We hope that this website has provided you with useful information. We welcome your comments on the site, indeed, on any aspect of clinical negligence for posting on our Forum. We look forward to receiving your emails to admin@medicalclaims.co.uk.
