How To Prove Medical Negligence In A Compensation Claim

We trust medical professionals with our lives. Whether we consent to a medical procedure or need one at a moment of emergency, we trust that they are giving us their full attention and doing their utmost to protect our health and wellbeing. Many operations and procedures are a success, but what if it goes wrong, you may be asking, ‘is proving medical negligence difficult?’.  

Proving medical negligence in a compensation claim guide

Proving medical negligence in a compensation claim guide

Whether it was an incorrect diagnosis, a mistake in your medication or an act of negligence during surgery, sub-standard treatment could mean you are entitled to make a claim. In order to make a valid claim, you would need to prove negligence. Sometimes in a medical environment, things do not always go to plan. However, that does not mean negligence has occurred.

As well as acknowledging your pain and suffering, medical negligence claims can help restore your finances from any losses you’ve incurred as a result of your injury.

Our article has free advice to help you prove a medical negligence case. We look at how the duty of care protects us, what evidence can uphold your claim and how two heads of damages can be used to calculate compensation payouts.

If you’ve been wondering how to prove a medical negligence case, speak to our friendly team, they could assess your case for free. It’s a free initial consultation with no obligation to proceed with us. We simply want to offer you free legal advice to start your claim correctly. You can call us on 0161 696 9685 or email at Advice.co.uk. Or you can also use the ‘live support’ option (bottom right). 

Select A Section

  1. A Guide To Proving Medical Negligence Caused Your Injuries
  2. Calculating Compensation For Clinical Negligence Cases
  3. Types Of Damages Awarded For Medical Negligence
  4. What Are Clinical Negligence Cases?
  5. Proving You Were Owed A Duty Of Care
  6. How To Show This Breach Caused The Specific Injuries
  7. Proving That The Negligence Caused Your Injury
  8. Applying The But For Test
  9. How The Egg Shell Rule Applies To Medical Negligence Claims
  10. What Evidence Can Help In Proving Medical Negligence?
  11. Proving Medical Negligence In No Win No Fee Claims
  12. Contact Us
  13. More Information
  14. Medical Negligence Statistics
  15. Medical Negligence Claim FAQ

A Guide To Proving Medical Negligence Caused Your Injuries

When you start a clinical negligence case, you will need to prove three things. The first is that you were owed a duty of care. In the case of medical negligence, this isn’t in dispute as doctors owe a duty of care to all their patients. You will also need to show that the care you received fell below the standard expected and that this breach of duty of care caused your injuries. 

In our guide, we will look at the process of determining whether a medical negligence claim is valid. We will also look at how compensation claims for medical negligence are calculated.

You may be wondering what kind of incidents constitute medical negligence. If so, this guide could be of use to you. We will look at the different ways that a doctor’s duty of care can be breached. 

To summarise, we will look at No Win No Fee solicitors and the process and the benefits that they can offer to you. We’ll finish by providing you with some helpful resources and answering some of the questions we’re frequently asked about medical negligence claims. 

Calculating Compensation For Clinical Negligence Cases

Medical negligence claims can cover a wide range of incidents. It’s possible to suffer injury through misdiagnosis, mistakes with medication, negligent treatment and surgical procedure mistakes, amongst other things. Perhaps a medical mistake has led to consequences in other areas of your treatment, creating new additional health problems. What can you do about it?

A medical negligence lawyer can help you in claiming compensation for the injuries you’ve suffered and any financial losses your injuries have caused you. Firstly, they can arrange for a medical assessment from an independent doctor to determine the extent of the injuries you have. This information will be put in a medical report, which your lawyer can use as the basis for calculating your first head of potential compensation called general damages.

General damages

The Judicial College Guidelines are a set of guidelines based on previous compensation awards for different injuries of different severities. Based on previous cases, the JCG tries to apply a general award for the pain and suffering that your injuries have caused you. Not guarantees of compensation awards, these figures simply try to keep amounts fair to all in areas where it’s difficult to accurately gauge impact.

We illustrate some examples below:

Injury How much?Description
Mental anguish£4,380Fear of impending death or reduction in life
Moderate psychiatric harm£5,500 to
£17,900
The injured person will have problems related to life, work, education and relationships but there will have been marked improvement and a good prognosis
Serious damage to eyesight In the region of £252,180Total blindness
Lung injury£2,060 to £5,000Injuries leading to collapsed lungs from which a full and uncomplicated recovery is made.
Lung injury £29,380 to
£51,460
Damage to chest and lung(s) causing some continuing disability.
Toxicosis from poisoning£36,060 to
£49,270
Severe toxicosis causing serious acute pain, vomiting, diarrhoea, and fever, requiring hospital admission for some days or weeks.
Digestive disorders of a serious but short-lived nature£8,950 to
£18,020
Serious but short-lived food poisoning, diarrhoea, and vomiting diminishing over two to four weeks with some remaining discomfort and disturbance of bowel function.
Serious or permanent kidney damage£158,970 to
£197,480
Serious and permanent damage to or loss of both kidneys.
Bladder injury£21,970 to
£29,380
Where there has been almost a complete recovery but some fairly long-term interference with natural function.
Hernia £13,970 to
£22,680
Continuing pain and/or limitation on physical activities, sport, or employment, after repair.
Pain disorder £39,530 to
£59,110
In these cases significant symptoms will be on-going despite treatment and will be expected to persist, resulting in adverse impact on ability to work and the need for some care/assistance.

These amounts are general estimates and will vary in each case, but they give an idea of the appropriate compensation amounts for various injuries.

Types Of Damages Awarded For Medical Negligence

In addition to general damages, your compensation claim could also include special damages. These damages seek to compensate you for any out of pocket expenses that you’ve incurred as a direct result of your injuries. 

When you suffer an injury, a whole array of unexpected and unwanted new costs can arise. You may be unable to work, resulting in a loss of earnings. Travel costs can also mount up, and you may find that you need treatment not available on the NHS to aid in your recovery. You may be able to claim these costs back in a medical negligence claim.

A No Win No Fee lawyer can help you collect together evidence of all these outgoings. It’s possible to recoup many different expenses if you can prove they were the result of the injuries you sustained.

Have you now forfeited a work attendance bonus? Perhaps you need modifications in your home or expensive medical procedures to correct the damage to your health? Do you need a carer now because of long-lasting injuries? A whole range of financial losses could be included in your claim. aking the guidance of a medical negligence lawyer could help ensure you get the full amount of compensation that’s owed to you.

What Are Clinical Negligence Cases?

The NHS treats over 1 million people every 36 hours, it offers an outstanding service. However, as with everything, there is human error, which can mean mistakes could be made. Mistakes could happen with all different kinds of medical treatment such as private care and cosmetic treatments. Let’s look at some specific examples of what might constitute clinical negligence:

  • Late, missed or incorrect diagnosis.
  • Misreading laboratory results
  • Unnecessary surgery
  • Surgery on the wrong site of the body
  • Incorrect medication prescribed
  • Incorrect information given regarding aftercare
  • Premature discharge
  • Infection caused by failure to sanitise instruments

It is possible for a misdiagnosis to take place and it was not due to negligence. This could be the case if the patient had not told the doctor about all the symptoms they are experiencing. In order to have a valid case, you must be able to show that the medical professional acted in a negligent manner. You must also be able to show that you suffered injuries you would not have suffered.  

A poorly trained medical assistant could read your medication chart wrongly. A consultant could fail to listen to your concerns and act on their own assumptions. A doctor could prescribe you medication, without checking that it could potentially react with other medicines that you’re already on. There are many ways that you could be the victim of medical negligence. 

Doctors Duty Of Care

Doctors who are registered with a license to practice medicine in this country must adhere to the duties of a doctor outlined on the General Medical Council website. These include keeping professional skills and knowledge up to date, treating patients with dignity and respect and protecting the health of patients and the public. If you think a medical professional has neglected their duties to you, and you’ve suffered injuries as a result, then you may be able to make a claim.

Proving You Were Owed A Duty Of Care

When a medical practitioner assumes some sort of responsibility for their patient, they accept a duty of care to safeguard their wellbeing. By accepting this, they agree to act in accordance with a relevant standard of care expected of an ‘ordinarily competent practitioner’. 

In other words, they agree to conduct themselves to the standard set in their profession. In this respect, a newly registered doctor would be expected to perform duties to the same level as one with decades of experience. Failure to adhere to these standards when delivering care can be classed as negligence.

The General Medical Council is a body that protects patient rights and their medical register lists doctors in the UK. The GMC gives patients confidence that their health professional is working to the highest possible standards of knowledge, skill and care. 

Professional Duty Of Candour

Part of a healthcare professional’s responsibility is something known as the ‘professional duty of candour’. This requires medical practitioners to be open and honest about mistakes. There are some specific requirements, such as:

  • Speak to the patient, family, or advocate and tell them when something has gone wrong
  • Apologise to the appropriate party
  • Offer an appropriate solution or remedy, if possible
  • Explain the short or long-term implications of this mistake
  • Offer support and give a clear treatment pathway

Absolute honesty to patients, colleagues, regulators and line managers is an important aspect of providing healthcare. Likewise, medical professionals should always encourage colleagues to do the same and uphold a culture of absolute clarity and accountability for the actions of everyone.

Failure to uphold the duty of care could mean the health care practitioner could be liable for any injuries that result from the neglect of this professional duty. If the patient is injured as a result, this could lead to medical negligence claims.

How To Show This Breach Caused The Specific Injuries

You need to prove that your condition was caused or made worse by negligence in order to claim medical negligence. Was it ‘more likely than not that the medical practitioner made you worse because of something they did or did not do? Was the standard of care they delivered sufficient? Did they exercise reasonable skill when performing their duties? If not, you could be entitled to make a claim for medical negligence.

You may be wondering how this reasonable standard of care is assessed. The Bolam test was set out in a case called Bolam v Friern Barnett Hospital Management Committee. It established that the medical staff must prove they provided a standard of care that professionals in the same field would regard as acceptable.

A form of ‘trial by peers’, the Bolam test is an effective way of gauging whether a healthcare provider fell short of their medical requirements in patient care. A doctor who did everything as they were supposed to is unlikely to fail the Bolam test, even if the subsequent treatments proved to be ineffective.

Proving That The Negligence Caused Your Injury

A medical negligence solicitor can help you to prove causation in your medical negligence case. Using the results of the independent medical examination, it can be possible to establish if the care you received ‘materially contributed’ to your problems. This allows the court to consider the overall picture of your treatment. 

For example, a case requiring gallstone removal was handled incorrectly. After the operation, this developed into pancreatitis, causing breathing problems and a choking incident. This, in turn, resulted in brain damage.

The question before the court was, did the patient suffer injuries caused by defective care in gallstone removal or the natural consequence of pancreatitis? Fine distinctions like this can be the hallmark of proving a medical negligence claim, and a medical negligence solicitor can prove useful in guiding you through them.

Applying The ‘But For’ Test

The ‘but for’ test asks us ‘but for the actions of that particular doctor or health practitioner, would I have suffered injury or a worsening of my condition?’. 

Often in medical scenarios, there is a succession of treatments, and it may be difficult to prove that any lone action was responsible. Some cases may be clear-cut incompetence, but many are not. A medical negligence solicitor can help with applying the “but for” test to your individual circumstances.

How The Egg Shell Rule Applies To Medical Negligence Claims

The ‘egg shell’ rule states that people with unusually fragile medical conditions are not discriminated against in compensation claims. It aims to protect people from having their cases dismissed because they are less physically robust.

For example, a patient may suffer from osteoporosis, meaning that their bones are brittle and more prone to breaking. However, this doesn’t negate the fact that a nurse who moves the patient from a wheelchair to a bed in a rough manner, breaking one of the patient’s bones as a result, could be negligent. 

When it comes to proving medical negligence, many factors come into play. The code of conduct of the medical professional, their actions, and the effects their actions have had on you will all be taken into account. But in a medical negligence case, we must ask ‘how did these factors combine to actually worsen your state of health?

Picking through these details is something a No Win No Fee medical negligence solicitor is trained to help with. Speak to us today to see how we can calculate compensation on your behalf.

What Evidence Can Help In Proving Medical Negligence?

How do I prove a medical negligence case? What evidence can demonstrate the results of negligence? The following can help:

  • A letter of complaint – as the injured party, you have the right to complain about the problem to your GP or health practice. They will have a complaints procedure, and this is your first official intention to use it. Making an official complaint is not a part of the medical negligence claims procedure, but you may find that it helps you in making a claim by providing more details as to what happened. 
  • Medical records – you are legally entitled to access and read all your own medical records. Therefore, every procedure and decision will be there in black and white, providing solid evidence for what took place.
  • Expert medical evidence – as we touched upon above, the results of a medical assessment could substantiate your claim of clinical negligence, providing concrete proof of injury. A medical assessment can be arranged for you as part of the claims process. 
  • Financial evidence – this will support the special damages head of your claim. Special damages seek to compensate you for any costs you’ve incurred as a direct result of the injury or illness that you suffered because of medical negligence. It’s essential to retain all bills, receipts, and statements in order for expenses to be included.

If the negligence resulted in death, a claim can be made using the death certificate, post-mortem results and details of any inquest that has taken place. We encourage you to reach out to our team at this difficult time for sensitive and helpful advice.

Proving Medical Negligence In No Win No Fee Claims

Your No Win No Fee solicitor will fight for you to receive the full amount of compensation you’re owed. Because it’s a No Win No Fee service, they also have a committed interest in achieving the absolute best outcome. Failed cases result in no one receiving payment.

Medical negligence claims can be difficult to navigate without a skilled professional on your side. 

There are various advantages to using a No Win No Fee service:

  • There are no initial fees to pay to hire your solicitor.
  • As the case progresses, there are no fees to pay your solicitor.
  • Your solicitor will only take on your claim if they’re confident it has a good chance of succeeding. This means you won’t waste your time pursuing a case where no compensation is due.
  • In addition to this, if your case fails, there are no fees to pay your solicitors at all.

The advantages to No Win No Fee agreements continue. Successful cases require you to pay a capped percentage to the solicitors as their fee. This amount is only due after you receive your payout and is deducted from your compensation. 

Our medical negligence claims team is available right now to discuss the specifics of your compensation claim for medical negligence. There’s no obligation to proceed with our panel of solicitors. We simply aim to give you the resources to make an informed decision. Free legal advice is invaluable when proving medical negligence claims, so why not give us a call?

Contact Us

We’ve covered many different factors of making a claim in this article. If you’re ready to start a claim for medical negligence, it’s easy to get in touch. Please feel free to:

  • Call us on 0161 696 9685
  • Fill out a callback form at Advice.co.uk
  • Speak to a member of our team at our ‘live support’ option, bottom right

Our friendly claims team is available 24/7. We look forward to helping you with your clinical negligence claim today.

More Information

If you’d like to know more about making a medical negligence claim after a dental procedure, you can read our guide to dental negligence claims.

Read our guide on claiming for medical negligence resulting in death for information on claiming for a wrongful death caused by a breach of a medical professional’s duty of care. 

Have you suffered injury or illness after a mistake in a surgical procedure? If so, you can read our guide on claiming for an operation that has gone wrong to find out how you could claim. 

As well as providing information and guidance to doctors, the General Medical Council also provides patient materials on what to expect from your doctor. You may find this useful in determining whether your doctor breached their duty of care. 

Have you needed to look into care costs? Perhaps your injuries have resulted in you needing help with basic domestic tasks? This NHS guide to paying for social care provides useful information.

The NHS constitution outlines the rights owed to patients, staff and members of the public. Furthermore, it offers guidance on the NHS complaints procedure. 

Medical Negligence Statistics

The following data was collected from NHS Resolution’s Annual Report 2019/20.

    • The NHS paid £2,323 million in medical negligence claims in 2019/20. (includes legal costs).
    •  In the same year, NHS Resolutions received 11,682 clinical negligence claims. This was an increase of 9.3% from 2018/19. 
    • Of the 15,550 claims settled, the majority (71.5%) of claims settled in 2019/20 were settled out of court. 
    • Damages paid to claimants rose from £1,393.6 million in 2018/19 to £1,413.4 million in 2019/20. 
    • The majority of the damages paid in clinical negligence claims in 2019/20 were related to obstetrics (50%). However, obstetrics only accounted for 9% of the number of claims reported.

Medical Negligence Claim FAQ

Can I claim against the NHS?

Yes. Although the structure of the NHS may seem complex, each area has a health authority. If you believe your care was substandard, causing you harm, you can start your complaint with your GP.

Is it fair or right to sue the NHS?

The NHS is supported by the national insurance contributions of UK citizens. It is a service that people contribute to, and everyone has a right to expect good quality care.

Can I get help to pay for problems caused by medical negligence?

When you launch a medical negligence claim, any costs that are a direct result of your injury can be claimed back as special damages in a successful claim. 

Thank you for reading our guide on proving medical negligence.

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