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Posted on 28th April 2017

What is a Medical Negligence Claim and What are Your Patient Rights

Covered here:

  • What is a medical negligence claim?
  • What is duty of care?
  • Examples of medical negligence
  • What are my rights as a patient?
  • What are the elements of a claim?

What is a Medical Negligence Claim?

When a doctor or medical practitioner has been negligent in their treatment, the patient can make a medical negligence claim and receive compensation (money) to make up for the harm caused.

A claim will count as medical negligence if the following three things can be proved:

  • A doctor was meant to look after you in a certain way.
    • This is known as “duty of care”.
  • That doctor has failed to look after you in the way they are meant to.
    • In legal terms this is described as “a breach of duty of care”.
  • Because the medical professional has failed to look after you in the way they are meant to, you have been harmed.
    • Harm has a specific, legal definition in medical negligence claims.

These three conditions can be described as "grounds to claim".

So the technical legal definition of medical negligence is:

For negligence to have taken place there must have been a breach of duty of care, and the breach of duty of care must have resulted in harm.

  • What are my rights as a patient?
  • Do I have grounds to claim?
  • How does a claim work?
  • How much compensation will I get?
  • How long do I have to make a claim?

What is duty of care?

Duty of care is the standard of care that an individual or organisation has to meet if they are providing a service that could potentially cause harm to someone.

This standard of care can come from:

  • Specific guidelines that are issued by official bodies
  • An established current industry standard
  • The practitioner's experience and level of expertise

So that means a new junior doctor won't be expected to have the expertise of a consultant, so the standard of care they provide will be different.

In a medical context, duty of care is judged by the following criteria:

  • The medical industry standard at the time of the incident
  • The professional's training and level of experience
  • With some treatments, specific guidelines that are in place

For example, medical professionals offering treatment to transgender people have to follow official guidelines.

Sometimes it may seem like a doctor has been negligent, but that doesn’t always mean they have been.

Here’s an example to explain:

If a junior doctor makes a mistake, it might not count as negligence. The mistake could be seen as understandable considering their experience and expertise, just like its normal for a trainee or new employee to make a mistake at first.

However, in this instance it may be proven that their supervising consultant was negligent in their responsibility to properly support the junior doctor. The supervising consultant should have ensured they didn't make such a harmful mistake.

Harm means physical and psychological harm

It can also include emotional harm, financial loss, loss of dignity or the neglect of a legal right.

Harm can be one-off injuries, or long term, on-going illnesses. If you’ve had to have time off work or have lost your job all together this will count as harm too.

Find out how solicitors prove harm here.

Some examples of medical negligence claims:

Negligence in a medical setting occurs when a medical practitioner or organisation fails to meet common, and (where relevant) specific standards of care. This can include:

  • A consultant failing to inform the patient appropriately of the risks of a treatment that they are about to undertake, or failing to get the patient's consent (where they're fit and well enough to give consent)
  • A GP failing to perform sufficient tests to investigate the symptoms you have presented which results in delayed diagnosis or misdiagnosis
  • A surgeon who makes a severe error like treating the wrong leg, for example. This counts as negligence because the surgeon should have enough expertise, training and experience to not make this kind of mistake

Each case is unique and negligence has to be proven according the exact details of your claim.

What are my rights as a patient?

The NHS has a specific constitution (known simply as the NHS constitution) that outlines your rights as a patient. Alongside this you also have all the legal human rights that any citizen in the UK has.

You have the right to:

  • receive NHS services free of charge
  • access NHS services
  • expect your NHS to assess the health requirements of your community and to commission and put in place the services to meet those needs
  • not be discriminated against in provision of NHS services
  • have the right to access services within maximum waiting times

Medical negligence is directly to do with a violation of your rights. Negligence is a violation of your right to not be harmed when in a medical care.

That’s why you might hear medical negligence described as a tort – a tort is a wrongful act or infringement of a right leading to legal liability.

Do I always have the right to make a negligence claim?

Yes, if you have been harmed you have the right to make a claim. Having the right to claim does not always mean you will be successful in your claim, however. Your solicitor must prove that negligence has occurred and that you have been harmed

You also have the right to make a complaint under the NHS constitution.

What are the elements of a claim?

“Making a negligence claim” means contacting a solicitor and asking them to begin the claims process. Once you’ve contacted a solicitor you won’t have to do much of the actual work – they will take over the case, ask if they need any information from you and contact the NHS directly.

In material terms, a claim basically involves sending a series of letters back and forth between the person making the claim (the claimant) and the NHSLA (the defendant).

If the matter cannot be resolved by this correspondence then alternative dispute resolution will be used, and if that doesn’t work the matter will go to court.

You can find out about the actual step-by-step process that takes place here or a more general summary of how a claim works here.

How is a medical negligence claim different from a personal injury claim?

A medical negligence claim is not just a personal injury claim in the context of medical treatment. Personal injury involves establishing who is to blame for an injury – clinical negligence involves establishing specifically whether a doctor, or medical professional, has made errors in treatment, either by actively doing something wrong or by failing to do something that a competent doctor would have done.

Further Information