Clinical negligence can be a minefield of complicated terminology. We’re here to make it all make more sense so have put together a glossary of terms that you might come across in a clinical negligence claim.
| Clinical negligence explained
This is also referred to as medical negligence or medical malpractice. Clinical negligence refers to failings in the treatment provided by the NHS Trust, GPs, dentists and any other healthcare providers or their employees which cause injury or death to a patient. You may be entitled to make a claim for compensation if your healthcare provider has been negligent.
The individual or party that is bringing a claim is referred to as the Claimant throughout the proceedings.
The person / party defending a claim is referred to as the Defendant.
Negligence is where someone’s actions (or inactions in some cases) fall below of that standard of a reasonable person in the same or a similar situation.
For example, consider someone driving the wrong way down the road, and as a result of that crashed into an oncoming car. Here, we would argue that that person has acted negligently because they did not act in a reasonable way.
| Standard of care
The standard of care is the benchmark to which we would expect the Defendant’s work to meet. If they do not, the Defendant is likely to be negligent.
The standard will be different for each case and will depend on the various factors including the Defendant’s experience, the treatment being given, and the Claimant’s condition. As a general rule, a doctor will not be negligent if he has acted in accordance with a practice generally accepted by the profession.
| Breach of duty
If the Defendant has failed to meet the standard as above, then they have breached their duty of care.
For example, consider that someone attended a hospital for an operation and at the end of the operation the surgeon closed the patient up and left a surgical knife within their body. We would first consider what standard of care that surgeon should be held to. The surgeon will be measured against a professional standard, and therefore compared to other surgeons. We would then ask, ‘would another surgeon have left the knife in a patient?’. The answer is highly likely to be ‘no’.
We then consider whether that surgeon breached the standard of care. In this instance, by leaving the knife within the patient the surgeon breached their duty of care.
Once you have established breach of duty, you must then show that the breach caused your injury. This is causation.
If we say that someone is liable, this means that we consider that they are responsible for your injury. An admission of liability is the defendant accepting that they have breached their duty and that breach caused your injury.
If you receive an admission of liability, the next stage of your claim would be to assess the quantum.
Quantum is the level of damages.
Assessing the quantum is an exercise in valuing your claim. It includes an assessment of your general and special damages.
| Alternative Dispute Resolution (ADR)
Rather than proceed to a trial, you may want to consider alternative dispute resolution (ADR). ADR can be very effective and there are different methods available in a clinical negligence claim.
The first is a Joint Settlement Meeting (JSM). Here, the Claimant, Defendant and their legal representatives hold a meeting to discuss how to resolve the issues between the parties. A JSM can lead to a successful outcome for both parties and does not involve the time and stress associated with a trial.
A mediation is another form of ADR. Again, both parties and their legal representatives attend. A mediator (a neutral person appointed by the parties) is present to oversee the meeting and facilitate discussions between the parties. The mediator will help the parties see each other’s point of view.
Our clinical negligence team always use clear, plain English. They will always explain when using the more complex, technical language. Call us today on 0800 988 7756 (freephone) for a FREE initial discussion.