There are 3 elements to a successful clinical negligence claim:
Liability – you must show a breach of duty of care amounting to negligent medical treatment
Causation – you must show an injury caused by the negligent treatment
Damages – then the court can calculate the amount of compensation you should receive, for any injury caused by the negligent treatment.
It is helpful to look at these 3 elements as inter-linked hurdles each of which must be cleared in order to have a successful claim. The claim can fail at any one of these hurdles.
Liability
It is necessary to prove that a doctor, surgeon, nurse, midwife, psychiatrist or other clinician or health professional has not exercised a reasonable standard of skill and care in relation to your medical treatment.
The standard of medical treatment has to be judged by the standards of the particular grade of staff and area of medicine, and the time at which the treatment was provided. The clinician must have done something, or failed to do something, that his colleagues would say showed that your treatment was not up to a proper standard
If the doctor has acted in accordance with a responsible body of medical opinion, even if that opinion is in the minority, then the treatment cannot have been negligent. This issue can be examined further to see if the body of medical opinion is truly in accordance with the up to date medical knowledge at that time, and whether those standards are acceptable to society in the present day.
Doctors and other medical staff can get it wrong without being negligent. It is only where the treatment falls below the reasonable standard of skill and care to be expected that the treatment may be held to have been negligent, and that a claim may possibly be made.
This is a question for medical experts. Unless another professional of the same type as the one who treated you says that there has been negligence in your medical treatment, you will not be able to bring a claim.
Causation
You then have to prove that you have suffered an injury as a result of any negligence in your medical treatment.
Any expected non-negligent outcomes from your treatment, or inevitable pain and suffering as a result of your underlying condition are disregarded. You can only claim for the extra pain and suffering, or worse outcome caused by the negligence.
Whether all your injuries flow from the negligence of your opponent is also a question for medical experts.
Damages
This is the value of your claim, as agreed with your opponent, or valued by the court if no agreement is possible.
It is the financial compensation you should receive for the injuries and losses you have suffered as a result of the negligent treatment.
The exact amount of damages will depend upon the particular facts of your claim.
Compensation is made up of 2 elements:
General damages – compensation for your pain, suffering and effects upon your everyday life. This is valued by looking at the Judicial Studies Board Guidelines and amounts awarded in previously decided cases. To see some examples of our past cases see Case Reports;
Special damages – your financial losses, both in the past and the future. Detailed evidence and documentary proof is needed to support any claims for financial losses.
You will also receive interest upon your award of damages.
All ‘compensation’ must be proved to be a result of the allegedly negligent medical treatment. If the link cannot be proved, then no damages will be awarded by the court.
Given that clinical negligence claims are very expensive to pursue, the likely value of your claim if you win, must be judged against the cost of pursuing the claim. If the legal costs of pursuing your claim are very much more than its potential value in damages it may not be possible to pursue it – see Funding A Claim for further details.
We can offer you an initial free interview in person and/or by E-mail or telephone to discuss your potential claim.
