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Personal Injury Solicitors - Clinical Negligence
For a clinical negligence claim to succeed several hurdles must be crossed:-
- Has the doctor or clinician been negligent in the first place, since a doctor or medical person is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical persons skilled in that particular area of medicine. There can be opposing medical views about a correct course of treatment. If both opinions are valid and with good reason, a doctor is not negligent merely because he acts contrary to one opinion but in accordance with another opinion. There are different standards for different doctors. A medical specialist is expected to achieve the standard of the reasonably competent specialist; a general practitioner is expected to achieve the standard of the reasonably competent GP. To prove a breach of duty a medical report from an expert in the same medical field is nearly always required.
- The negligence complained of must cause or materially contribute to some recognised loss injury. This aspect can be extremely problematic in clinical negligence cases, because a patient is already suffering from a medical condition or is in need of some form of medical treatment, which is why he or she consults a doctor in the first place. It is necessary to compare the outcome which has actually occurred with the outcome which would have occurred if there had been no negligence. It is often more easy to identify a case of negligent practice, than to identify what would have occurred for the better if there has been no negligence. In determining whether negligence was the cause of an alleged poorer outcome, the court considers what would have been the outcome if the negligence had not occurred. This causes difficulties because the underlying medical condition may have deteriorated in any event and several factors can combine to bring about a poorer outcome. The task of the lawyer is to prove to the court what “additional injury” was suffered over and above the underlying medical condition. In cases of difficulty, a Claimant can succeed if he or she can establish that the identified negligence materially contributed to the additional injury suffered over and above the underlying medical condition. For example, a medical condition may be deteriorating and the patient’s injury could be due to this underlying deterioration or due to the negligence. If it is possible to treat aspects of the injury individually the doctor/hospital is liable to compensate for the individual injury caused. If it is not possible to so identify the injury caused by the doctor in a claim brought for a “material contribution” the doctor must compensate for the whole of the injury. Sometimes there is only the loss of a chance of recovery or survival. If the chance is 51% or more the Claimant might be able to recover for the whole 100% of the loss as if the loss would definitely not have occurred. The position is different if the chance is less than 50% of a successful outcome. You cannot win a claim for loss of chance if the chance is less than 50%, but the law is different if your claim succeeds and the court is considering future loss arising as a result of the negligence.
- The injury must be sufficiently serious to justify an award of at least a moderate amount – in the region of £8,000 to £10,000. The costs generated by a clinical negligence claim can be significant and it would be inappropriate to resort to litigation for claims worth much less than this unless the prospects of success are extremely good.
- The better claims have a single identifiable “complaint” which gives rise to an identifiable injury where the injury is fairly serious and has occurred in the last 6/12 months.
- A potential client considering bringing a clinical negligence claim should carefully consider their motives. We would probably not wish to act in claims
- A client is unsure he or she wants to go to the courts over what has happened.
- A client who wants an explanation, apology or revenge. If you are considering instructing us in this area of law, you should primarily want monetary compensation.
- There have been previous solicitors involved.
- A client has unrealistic expectations of the outcome of the litigation.