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Introduction to medical negligence

by Evolved legal on September 9, 2012

When we have medical procedures performed on us by medical professionals we expect that the highest of standard are adhered to. If these are not and we suffer as a result then those medical professionals at fault can be sued in order to compensate for any loss or injury.

The types of situations which can lead to a claim include:

  • Mistakes in surgery;
  • Failure to act or treat a patient when it is necessary to do so;
  • Administering the wrong medication or the wrong dose of medication; and
  • Misdiagnosis or failure to diagnose a condition.

The basic concept of these claims is the same as a claim for any other personal injury but the issues can often be much more complicated and involve the need for expert medical evidence.

What must be proved?

In order to be successful in a claim the ingredients of negligence must be proven, these are:

  • The existence of a duty of care – this will be found where a healthcare professional performs a service for an individual, such as a surgeon conducting an operation;
  • The breach of that duty – this will be found where their action, or lack of action, falls below the expected standard of a reasonable healthcare professional in their field of expertise;
  • Injury caused by that breach – the injury needs to be caused as a result of the breach of duty such as the loss of feeling because the surgeon negligently damaged a nerve.

How to bring a claim?

It is important to go to a solicitor who is experienced in bringing claims for medical negligence as the issues can be complex and the implications of failing in a claim can be severe. If a claim is dismissed the Defendant’s cost may become payable, these can be considerable in such a case as experts are often commissioned and healthcare bodies will often instruct expensive lawyers. A solicitor may need to commission expert reports on both the cause of an injury and the financial effect the injury will have on the injured party.

It is possible to enter into a conditional fee agreement with a solicitor although in many medical negligence claims it is very difficult to assess the chances of success due to their complex nature. Hence, solicitors may be reluctant to take on a case without being paid up front and bear the expense of expert reports and lengthy litigation with no guarantee of remuneration. It is possible, at present, to receive Legal Aid when making a claim in medical negligence although it is uncertain as to how much longer this will be possible.

Expert Evidence

Due to the nature of the arguments involved in proving a claim in professional negligence it is often the case that experts need to give evidence. This is because there are various ways a medical professional may treat a patient and it would be a defence for them to say that the method they have selected, although unconventional, is consistent with the way other reasonable professionals would have acted. It is worth bearing in mind that just because a patient has suffered some harm it does not necessarily mean that the medical professional was negligent. There are risks that come with any medical procedure and a patient can suffer adverse consequences even though the medical professional has acted entirely appropriately.

Where does the money come from?

All medical professionals pay for professional insurance to cover them in situations where they are sued for negligent conduct. Therefore the resources of the insurance company are enough to cover the claims made against the professionals.

How much will I receive?

The amount of money a court will order upon a claim being successful will depend on the severity of the injury and the extent it has affected the injured party’s life. Damages can be awarded for consequential losses such as a loss of earnings or the cost of a carer if necessary.

It is possible to settle a claim before it reaches court. This is another time when a trained solicitor is vital in ensuring that the amount offered is appropriate and adequate in compensating the injured party for the injury sustained and their future needs.

This post courtesy of My lawyer who provide a wide range of online legal documents and ancillary services.

Evolved legal

Evolved legal

Evolved legal

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