Overview of medical injuries

What is a medical injury?

If the treatment you received from a doctor, hospital, dentist, nurse, midwife or other healthcare worker/ organisation falls below what is accepted as being reasonable medical practice when you received it – and you suffered loss or injury as a result which could or should have been avoided – you may have a claim for compensation. You may also have a valid claim if your spouse or child dies because of the negligence of the healthcare worker.

Your claim will ordinarily need to be brought within three years of the harm suffered or three years from when you discovered the harm or reasonably should have discovered the harm.

Claims for medical or clinical negligence – where the healthcare worker is alleged to be in breach of the duty of care they owe to their patients - can arise in all sorts of situations including:

• Misdiagnosis or delayed diagnosis.
• Being prescribed the wrong drugs.
• Careless surgical procedures.
• Unacceptable delays in treatment or in referring you to a specialist.
• Failure to adequately warn of the risks of a procedure.
• Failure to get proper consent from you before carrying out treatment.
• Sometimes it may be the systems in place at the healthcare organisation which are to blame for the harm caused.

Proving medical negligence

To successfully make a medical negligence claim you must show that on the balance of probabilities that:

• the healthcare worker made an error in treating you which no-one else in their position would make if they were competent; and
• those errors caused, or materially contributed to, the harm you suffered and which is the basis for your claim.

NHS complaints procedure

If the treatment you are not happy with was received through the NHS, before you consult a solicitor you may want to go through the NHS complaints procedure (if you choose not to do this first and you later apply for legal aid you may be turned down if the complaints procedure has not been used).

NHS Trusts, hospitals, health authorities and general practitioners are obliged to set up, and publicise, a complaints procedure. Complaints should be made within six months of the date of the medical accident, or within six months of the date when you knew of your injury (provided that is within one year of the accident).

Once you have complained, the NHS Trust or health authority which provided the treatment has a duty to investigate promptly and respond. If you are not satisfied with the response you can ask for an independent review from the Healthcare Commission. If the request is refused or you’re unhappy with the report, you can complain to the Health Service Ombudsman. 

Internal inquiries

All NHS trusts should have an effective procedure for reporting and investigating any serious clinical incident. An inquiry team will produce preliminary findings and then an internal inquiry may be held. You should be kept informed of the problem and the result of the inquiry. Your solicitor would be entitled to a copy of the inquiry proceedings and decision. 

Getting legal advice

If you decide you want to pursue your claim you can bring a case yourself but dealing with insurers, expert witnesses and possibly court proceedings is a complicated business and you’re better off getting professional advice.

In choosing your solicitor you should opt for someone who has lots of experience in handling these sorts of cases and preferably a member of the Action against Medical Accidents’ (AvMA) panel or the Law Society Clinical Negligence panel.

Most solicitors won’t charge you for your initial consultation when you’re explaining your case and they’ll be able to advise you on whether your case is worth pursuing further and the best way you can fund it.

The solicitor will require a huge amount of information about your case and it will be useful if you write all the details down before you go to see him/her. Information required includes:

• Your previous medical history.
• Why you sought the medical treatment which led to the harm.
• Names of all healthcare workers involved, including those who you saw before or after the offending treatment.
• What the doctors asked you, what they diagnosed, the advice given and the suggested treatment.
• What warnings you were given about the risks of the treatment and details of any alternatives offered.
• Details of any relevant witnesses.
• Details about conversations at later medical consultations.
• What complaints you have made to the healthcare worker or organisation involved.

Expert witnesses

In investigating your claim, you solicitor will almost certainly call in the services of a medical expert who will be highly experienced in the speciality which provided the medical treatment complained of. Once instructed the expert will be sent your statement of facts, medical notes and records and the questions your solicitor wishes the expert to answer. He will then send a report to your solicitor stating whether he feels your medical treatment was negligent, and whether that negligence caused your injuries. The defence will also engage their own expert who may wish to examine you to come to his or her own conclusions.

Next steps

If, after receiving the expert’s report your solicitor feels you have a good case he/she will send a formal letter of claim to the defence before any court proceedings are commenced. The defendant should acknowledge the letter of claim within 14 days and provide a detailed response within three months. If you have a good case it is likely the claim will be settled at this time and the solicitor will obtain a pay-out for you and advise you whether it is a good deal. If not, the case may have to proceed to court.  

Case management

A judge experienced in these types of cases will decide how the case will be run and may make several directions e.g., requiring further details or an exchange of documents. He/she may direct that a single expert be appointed to assist the court or order the existing medical experts to meet and discuss the case, identifying where they agree and where they disagree, with reasons. It may also order you and the defendant to engage in mediation to try and resolve the case before the case is litigated further. If the case does proceed in court you may be required to give evidence and your solicitor/ barrister will be able to tell you what this involves and what will be expected of you. 

Damages

If the judge rules in your favour you may be entitled to damages which could be awarded on the basis of any of the following:

• Special damages - your loss of earnings and costs of care before the trial.
• General damages – covers pain and suffering (including reduction in life expectation, psychological damage and adverse effect on your enjoyment of everyday activities); loss of earnings after the trial and loss of pension; cost of future care.
• Provisional damages – available if you do not know how your injuries will affect you in future.
• Aggravated or exemplary damages – these might be awarded if the healthcare worker has behaved in a particularly appalling manner.