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What is Clinical Negligence and How Can You Claim?

By: Lorna Elliott LLB (hons), Barrister - Updated: 8 Sep 2012 |
Negligence Clinical Medical Claim

Although we don’t like to think of health care professionals making mistakes it is a fact of life that they do and that people are injured as a result. However, not all circumstances that do not turn out favourably are in fact clinical negligence. The test is whether or not a ‘reasonable’ person would have acted the same way in the same or similar circumstances. If the medical practitioner acted without considering all the circumstances, or did not use sufficient care or skill such as would be expected of a person in a similar situation, this could amount to clinical negligence.

Formerly known as medical negligence, clinical negligence can create a new illness (whether physical or mental) or make an existing illness worse. It can occur because of numerous things, such as failure to diagnose a condition, failure to obtain consent before administering treatment, administering a treatment that goes wrong, using the wrong treatment or failing to treat a diagnosed condition.

Who to Sue?

No healthcare professional is immune to clinical negligence and doctors, private healthcare practitioners, dentists, nurses, occupational therapists amongst others can all be sued as individuals. In addition hospitals, whether private or NHS funded, can be sued, as well as manufacturers of medical products that are in some way defective, including drugs and implants.

Time Limits

In order to prove clinical negligence you must make a claim within three years of the time when the negligence occurred, or within three years from the date when it became apparent that the treatment had caused substantial injury.

How to Make a Claim

If you think you may have a claim in clinical negligence you should contact a solicitor without delay. They will be able to consider the circumstances of your particular case and will be able to tell you whether or not, in their opinion, you might have a case in which you could claim compensation. As clinical negligence claims are based on the acts and omissions of medically trained individuals, your solicitor will commission a medical report(s) written by an expert that will detail the circumstances of your case. A clinical negligence solicitor will also be able to advise you as to how best to fund your case.

If the claimant is a minor (under 18) then usually the parent or guardian will conduct the claim on the child's behalf and any agreed settlement agreed BEFORE court proceeding are issued MUST be approved by a judge. Alternatively the minor on reaching 18 has a further 3 years in which to bring a claim

Funding Your Case

There are four ways that your case can be funded. Low-income and low net worth individuals may be eligible for funding from the LSC (Legal Services Commission.) If you are successful in your case, the solicitor will use part of your compensation to pay his or her bill. Another method is to take out legal expenses insurance, which covers the cost of your legal proceedings. However it is very important to ensure that you check the terms and conditions of any policy before you take it out – especially since you may be required to use the insurer’s solicitor, rather than your own choice of lawyer.

Perhaps the most well known method of funding a clinical negligence claim is through a ‘conditional fee agreement’, also known as ‘no win, no fee.’ If your solicitor does not win the case, you won’t have to pay them any money. If they do win your case, they will generally recover their costs from the losing side. The last method of funding is by paying for litigation yourself. However, be warned: if you lose, you may also be ordered to pay the other side’s costs.

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