Confused over whether you can make a compensation claim? Our simple guide can help you earn back what you deserve

It probably goes without saying that, whether it’s through the NHS or private medical care, the UK’s healthcare system is among the best in the world. With a plethora of skilled medical experts (1.6 million of them in the NHS alone) and a near-total commitment to professional care, service, and progression, it’s no surprise that the number of claims for clinical or medical negligence made against medical practitioners is so scarce.

Unfortunately, instances of claims for clinical negligence still exist, often resulting in expensive and well-publicised court cases and settlements. More importantly, the incident under scrutiny can leave the injured, innocent party feeling angry and betrayed. The patient could well feel weak and powerless in moments like these, but the power is still in their hands to seek recompense for the malpractice they have been a victim of. All it takes is a little knowledge of the laws surrounding clinical negligence to be able to use that power.

Defining clinical negligence

In its simplest form, clinical negligence (also known as medical negligence) occurs when a patient is the victim of substandard treatment or advice from healthcare professionals, leading to physical or emotional distress. This broad definition allows clinical negligence to cover many different forms of inappropriate, negligent acts by practitioners — from an incorrect diagnosis or prescription from your GP, to life-altering mistakes or errors by a surgeon during invasive surgery.

It also covers multiple forms of medical care away from the hospital or from a doctor’s surgery, with chiropractors and physiotherapists among the other experts liable to clinical negligence claims if their service and/or treatments to a patient bring negative results. A clinical negligence claim does not have to be about the actions of a healthcare professional either. The actions they don’t make can often be equally as detrimental to a patient’s health, such as failing to identify a problem in an x-ray, a lack of diagnosis for an illness, or the refusal to prescribe necessary medication.

How to know if you can make a claim

To save the time, effort, and finances of both yourself and who you aim to claim against, it’s worth having a clear understanding of whether your situation warrants making a compensation claim. Over 60% of cases taken to trial against the NHS are successfully defended, further showing how easy it is for the definition of clinical negligence to be misconstrued.

Two key factors will be taken into account when the decision over whether to take your claim forward is made. Firstly, liability is an extremely important matter, as your case must present evidence that the professional who treated you did not make a decision, or act in such a way, that a similar professional would when looking to achieve the best outcome for the patient. Secondly, there is causation. This means proving that the suffering you have endured is a direct result of the actions of the individual or group of people you are claiming against. If it can be proven that there is more than a 50% chance that the doctor, nurse or other professional caused your problems, then the case can be taken forward — but the higher this percentage, the stronger your claim will be.

There are also instances where individuals have claimed on behalf of someone who has been a victim of clinical negligence. If you are the next of kin of someone who has passed away due to negligence or lack the capacity to make a claim themselves, you are in a position to do it for them.

Steps to take after a clinical negligence incident

Before any steps toward a compensation claim on the grounds of clinical negligence are made, other steps should be taken to begin the process of proving a serious wrongdoing has taken place. If you have any worries or notice something untoward following your meeting or treatment with a medical professional, you should seek an official, written explanation from them, and see if the issue can be quickly resolved. If it cannot be resolved, the explanation could well play a large part in the validity of a compensation claim.

All your medical records will also be an important aspect, which should consist of every note, step, and procedure taken by the professionals that dealt with you. You are legally obliged to see these records, and you can give permission for a solicitor to acquire them and bring them forward as invaluable evidence to your claim.

If you decide to make a claim, understanding who you must claim against is a necessary step before going any further. If the incident in question involved a person or group of people practicing under the NHS, you will claim against the NHS, which will be represented by its independent Litigation Authority (NHSLA). The end result of claims against the NHSLA is usually an out-of-court settlement, with less than 2% of cases reaching the courtroom. If the incident was caused by a private practitioner, then you will claim against them or the management of the clinic they work in.

Either way, the legal process involved will focus purely on three factors: outlining the suffering caused, identifying the individuals who caused the suffering, and ensuring you are financially compensated for the incident. Any other motivations for making a claim, such as putting a medical practitioner out of work or a changing of policy, will not be a direct result of a successful claim.

 Tips for a strong clinical negligence claim

Stay calm and prepare a claim – It’s only natural to feel frustrated when physical health or psychological stability is snatched away from you by professionals you trusted. However, try not to let that frustration get in the way of earning back what is rightfully yours. Consult the individual you believe to be responsible in a calm but very serious manner, so they can respond with an explanation. Gather those clinical records, make a note of any pain, side-effects or financial losses you’ve had to go through since the incident occurred, and put together a bullet-proof claim.

Don’t wait around to make your claimThree years from the date of the injury is the general rule for personal injury claims, but once you’ve gathered all that important information, little time should be wasted in getting started. Making a claim shortly after the incident means your memories of what can often be a long-winded and intricate medical process remain fresh in the mind. Lacking the ability to talk your solicitor or other parties through the event can deal great damage to the validity of your claim, so once you’re ready, get the ball rolling.

Get expert advice – Kicking off the legal process by contacting a personal injury company for legal advice as soon as possible is recommended. They can soothe any worries or queries you might have and make a sound decision on whether you can proceed with your claim. Finding a company that will take your case forward on a “No Win, No Fee” basis can also be of great benefit, taking any potential financial risk out of making a clinical negligence claim.

About the author: Carl Waring of Mayiclaim is a senior solicitor with over 25 years of experience in compensation claims and legal disputes.

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