| What is a medical negligence compensation claim?
A medical negligence compensation claim is a specific area of law that deals with claims against people who provide us with the healthcare that we need to keep us healthy, and to look after us when we get unwell.
Whether you pay for your treatment on a private basis, or receive your care through the NHS, the hospitals, doctors, nurses, GPs, dentists and other medical professionals who look after you will usually provide treatment of the kind that you are grateful for, but there are occasions when things go wrong. That’s when you may need to know more about what’s involved in investigating a medical negligence compensation claim.
There is a lot of jargon involved in the law, and in medicine. As communication is a massive part of how we interact with our healthcare professionals, as well as with any lawyers that you might need to speak to, we wanted to set out some of the more common terms that are used when considering a medical negligence claim.
| Time Limits
Lawyers often talk about a limitation date. This is just their way of referring to time limits that the law sets out for bringing a claim against those that we think are responsible for the harm that we have suffered.
The reason for time limits is that it is thought to be unfair that healthcare professionals are left open to having to dispute claims made against them when too much time has gone by for them to have records that they can refer to, or to find witnesses who remember what happened. For this reason, a medical negligence compensation claim must be brought within 3 years of the date that you knew, or ought to have known, that there was a problem with the treatment that you received.
In the legal profession the date from which we calculate the 3-year deadline is known as the “date of knowledge”.
For example, if you had an x-ray of your chest in 2017, but it wasn’t until 2021 that a doctor advised you that the x-ray showed up something that you should have been told about in 2017, the 3 year time limit would start from the date in 2021 when you found out that you had a problem that perhaps could have been avoided if action had been taken in 2017.
If you have lost a loved one in circumstances where you think that their treatment was mismanaged, the 3-year time limit may start from the date of their death, rather than from the date that they were told there was a problem with their treatment.
The time limit is important because if court papers are not lodged in time, the right to claim is likely to be lost.
| What do we need to prove to successfully recover compensation
Medical negligence claims can be complicated. This is because we have to consider previously decided cases, as well as old and new laws, before even setting out our claim to the other side.
The lawyers talk about breach of duty, causation and avoidable harm. These are 3 hurdles that we have to overcome before we can prove our case. It is for us to prove to the Judge that the claim is one that should succeed, and not for the health professional or hospital to show that they did everything right.
| So, what is breach of duty?
To bring a successful claim we have to show that the treatment/care/surgical skill involved fell below the standard of care that you could have reasonably expected to receive. This doesn’t mean, however, that just because your doctor decided on a different type of treatment, this was necessarily a breach of the duty of care that you were owed. What the law says we must do is to look at what a reasonable body of doctors, who are qualified to provide the treatment that you needed, would have done.
If we can prove that the care fell below the relevant standards, we have then got to go on to prove causation (the link between the mistakes made and the pain and losses suffered), and avoidable harm (the symptoms and losses that wouldn’t have been suffered if the treatment had been done as it should have been).
So, for example, if there was a delay in diagnosing a tumour as evidence of a lung cancer, but that delay didn’t change the treatment that would have been offered, or the outcome for the patient, the claim would not be successful as the mistakes didn’t lead to any avoidable pain or suffering, or to any change in how the disease progressed.
| We are here to help.
We understand that challenging the treatment that you have received and bringing a medical negligence claim can be frightening and distressing, However, being a victim of medical negligence can have life changing consequences for you and your family. We are here to help, and we always understand that you were the one living with the consequences of what has happened to you and will always act in your best interests. We can discuss with you bringing a claim to get you what you need to maximise your quality of life, which may include looking to put you in touch with the therapy and rehabilitation experts that you need at as an early a stage as possible.
You can help us to get the best result for you by providing us with as much information at the beginning of your claim as possible. If there is anything that you don’t understand about what will be involved in the process, please just ask!
Please call us today on 0800 988 7756 for a free initial chat with our medical negligence team about what’s happened to you.