Clinical negligence in the UK is an area of law governed by very specific rules under which claimants can receive compensation. It has been suggested the rules put in place are designed to provide a balance between consumer protection and the right of healthcare providers to provide care without the constant risk of lawsuits.
For the most part, the regulations seem to work as intended. However, some would say things are skewed too heavily to the benefit of the healthcare industry. In either case, consumers who believe they have been harmed due to the negligence or carelessness of a medical professional or institution have the right to attempt to seek compensation.
The Definition of Clinical Negligence
Clinical negligence is a legal term describing the actions of health services providers that result in negative consequences to the patient. In the UK, we used to use the term “medical negligence.” It is important to understand that what we are talking about here is not the same as professional negligence or misconduct. Professional negligence is a much broader term that can be connected to a wide range of professionals.
In order for claimants to receive compensation in a clinical negligence case, two things need to be established: liability and causation. It is up to the claimant to prove these things rather than the caregiver to defend him or herself. According to Patient.co.uk, liability and causation are defined as follows:
- Liability – In proving reliability the claimant is asserting that the caregiver acted in some way, or made some kind of decision, that would be considered abnormal in most circumstances. An extreme example to illustrate the point would be a doctor who chose amputation to treat a minor fracture. Doing so would be an abnormal and irrational decision on the doctor’s part.
- Causation – The causation part of the claim dictates that harm was done to the patient that would otherwise not have occurred had the healthcare provider’s decisions followed normal courses of action. The claimant must prove that the decisions or actions of providers is more than 50% responsible for the harm caused.
If both liability and causation can be proved, a claimant is eligible to receive compensation based on things like current and future lost income, pain and suffering, and loss of quality of life. However, awards are tightly regulated in the UK to limit excessive claims.
Legal Standards of Liability
For the benefit of healthcare providers, Patient.co.uk lists the two standard tests normally used by claimants to prove liability. Both tests are based on well-known UK court cases known as Bolam and Bolitho. These cases are offered as a means of providing some guidance for healthcare professionals to defend themselves.
In the Bolam in case, it was determined doctors could not be found negligent if their decisions and actions are in accordance with commonly exception procedures. Even if those actions and decisions are not always agreed upon as the best course of action in a given circumstance. As long as the doctor acts in a way that is reasonable according to generally accepted practices, he or she is protected.
The Bolitho case addresses the same issue but from the opposite perspective. In this case, it was determined that a healthcare provider could not mount an effective defence based on decisions or procedures that are not generally accepted by a wide range of similar providers as being reasonable. The Bolitho standard suggests healthcare providers need to make decisions based on what is currently deemed reasonable within the healthcare community.
Attorneys working for claimants will often assess a claim under these two cases to determine whether there is a likelihood of success. If a solicitor deems the healthcare provider can mount a proper defence, he or she may recommend the claimant not proceed.
What to Expect with a Clinical Negligence Claim
Under most circumstances, clinical negligence claims follow a certain pattern of procedures. It begins by contacting a solicitor specialising in such cases. The solicitor will evaluate what the claimant has to say and then proceed from there. It is always best to use a solicitor with clinical negligence experience rather than someone who just practices general law.
The Medical Protection Society explains that burden of proof is always on the claimant. That means claimants will have to provide their solicitors with as much evidence as possible in order to substantiate their claims. Evidence includes things like documentation from doctors, proof of lost income, and so on.
In an attempt to prevent unnecessary litigation, solicitors will follow what is known as the clinical negligence pre-action protocol. This procedure attempts to resolve a claim between claimant and defendant without having to go to court. In simple English, it is known as “settling out of court.” The procedure goes as follows:
- A solicitor will assess a claim and advise on an appropriate course of action during an initial consultation
- If the claimant decides to proceed, the solicitor will file the necessary paperwork to obtain all medical records. The doctor or healthcare facility has 14 days to acknowledge receipt and an additional 40 days to provide records.
- If, after reviewing records, the solicitor decides a claim is warranted a letter of claim must be drafted and sent to the defendant. The letter of claim must include what the claimant is alleging as well as the compensation sought.
According to the Medical Protection Society, less than 2% of all clinical negligence claims actually end up in court. That is because solicitors are very careful about taking cases they are unlikely to win. Because a letter of claim represents a fairly solid case against the healthcare provider, most choose to settle out of court rather than incur the expense of litigation.
What to Expect from Litigation
When a defendant decides to fight a claim, it can end up in court. Litigation can be costly and time-consuming so it is not always the best course of action. Once a solicitor informs the client that litigation is unavoidable, he or she begins to prepare for the trial, which could take several weeks or more.
Fortunately, many defendants initially deciding to fight a clinical negligence claim have a change of heart the night before the trial begins. More often than not, they settle out-of-court or seek mediation. In the small percentage of cases that actually go to court, defendants believe they have a solid defence based on the two previously discussed cases.
Litigation begins with the summons process. A summons must be filed within three years of the injury in order to be valid. In cases where the patient was a child or mentally challenged at the time of the injury, the time requirements for the summons can be extended. However, that is up to a court to decide. As a practical example, a child suffering a brain injury at birth could still file a claim as an adult if liability and causation can be proved.
What to Expect If You Win Your Case
UK law is very specific in terms of how awards are meted out and who pays what. Beginning with solicitors fees, the law has changed so that from April 1, 2013 both claimant and defendant pay their own solicitors fees. Solicitors offering no win, no fee representation will still be deducting their fees from any award received. Prior to the law change, solicitors’ fees and court costs were paid by the losing party.
In the event you win your case, a court will determine your award based on the details of your claim. You may receive compensation for lost wages, medical costs above and beyond what the NHS provides, pain and suffering, etc. However, unlike clinical negligence laws in other countries, awards are seldom six figures and beyond. UK courts are very cognisant of excessive medical negligence claims to the extent that they resist multi-million pound claims.
Once you win your case, your solicitor will deduct his or her fee from your award and you will be paid either in a lump sum or through instalments from an insurance company. Some claimants choose the lump sum option as a means of getting the money right away even though it typically pays out less than the instalments.
Keep in mind that there may be some court costs not covered as part of solicitor fees. Those costs would include expert medical testimony, additional medical tests from a private provider, and so one. You will be responsible for paying all of these costs out of pocket.
Choosing a Solicitor
If you believe you have a clinical negligence case, your choice of attorney could mean the difference between winning and losing. It is always a good idea to use a lawyer with a proven track record of successful negligence litigation. These types of solicitors have special knowledge of medical terminology, health issues, and the UK healthcare system necessary to give you the upper hand.
When you are searching for a solicitor, do not underestimate the value of the opinions of others. You can look up various solicitors online to see what others are saying as well as find professional reviews by various organizations. If you look for solicitors from organizations like the Law Society, you will be tapping into a pool of law firms with good reputations.
UK consumers who have been injured or otherwise harmed due to clinical negligence do have certain rights to compensation. If you are one of these individuals, it is important you seek advice of a solicitor right away. If you wait beyond the three-year limit, you may not be eligible. The sooner you can get a solicitor working on the case, the better off you will be.
The Internet provides a great place to search for clinical negligence solicitors. One of the quickest and easiest ways to do so is to use a website whose only purpose is to locate solicitors in your area. We have provided some links below to get you started. Keep in mind that some of the firms you find will handle only clinical negligence cases while others practice across a broad range of disciplines.
Action Against Medical Accidents – A UK charitable organisation with the mission of helping to prevent medical injuries by holding doctors and healthcare facilities accountable. On this site, you can search for solicitors by geographic area by simply entering your postcode.
The Law Society – As the UK’s leading professional organisation for solicitors The Law Society can recommend clinical negligence solicitors with proven reputations. Here you can learn the basics of clinical negligence claims before searching for your solicitor.
Search 4 Solicitors – A directory website letting you search for solicitors for clinical negligence and other cases. You can search by postcode or browse by category.
Solicitors Regulation Authority – The SRA is responsible for making sure solicitors in the UK are following guidelines and regulations. On this site, you can search for a solicitor as well as take advantage of a comprehensive library of legal information.
Lawyer Locator – By answering a few simple questions and clicking the appropriate button, you can search for a clinical negligence solicitor in your area. This directory site also allows you to browse by town if that is your preference.
Quality Solicitors – This site is operated by a group of dedicated solicitors offering clinical negligence and other legal services in 400 locations across the UK. When you submit your information on this site, a participating solicitor in your area will contact you.
Contact Law – A website offering a free service to help you locate the right solicitor for your case. When you fill out the form, one of their trained consultants will get back to you as soon as possible. If you prefer you can call them using the free phone number provided on the site.
With literally thousands of solicitors practising across the UK, we cannot possibly do justice by attempting to list them here. Nevertheless, we have provided links to the following five law firms just to give you an idea of what is out there. Be sure to review any solicitors properly before deciding on the best one to use.
Penningtons Solicitors – This well-known London-based law firm is accredited for clinical negligence claims by the AVMA. Their initial consultation is free and they offer a no win, no fee funding option.
Leigh Day – This law firm is a specialist firm dealing mostly with personal injury cases. Their clinical negligence team is especially adept in brain injury and spinal injury cases. You can contact them via their website or over the phone.
Irwin Mitchell – Arguably the largest and most well-known law firm in the UK is Irwin Mitchell. Their dedicated medical negligence division provides the knowledge and expertise you need to win your case.
Goodmans Law – Goodmans is a Legal 500 listed law firm specializing in clinical negligence cases. As a specialist practice, they understand the current state of negligence and health law in the UK. They are ready to take your case as soon as you contact them.
Field Fisher Waterhouse – This law firm is one of the UK’s leading speciality firms dedicated to personal injury and clinical negligence cases. They have more than 25 years experience fighting on the behalf of injured patients.