Patients seek medical care to maintain or improve their health, but what happens when a physician makes matters worse? Medical negligence is difficult to prove, requires specialist personal injury lawyers (see our directory) in your corner, and it can become overwhelming to victims who are suffering as a result of the negligence. What is it and what are the first steps to take if you suspect negligence?
What is Medical Negligence?
Also called “clinical negligence,” medical negligence is a breach of a legal duty of care owed by healthcare providers to their patients which results in harm to the patient.
A medical negligence claim is a civil process where a patient pursues compensation for harm that results from a healthcare provider’s negligence. In order for a patient to prevail in a medical negligence claim in the United Kingdom, the patient must prove:
- The physician had a duty of care to the patient
- The physician was negligent
- The patient suffered harm as a result
The patient must prove both liability/breach of duty (the provider acted in a way other competent providers would not have acted) and causation (harm resulted that would not have occurred otherwise).
Medical negligence can occur in any healthcare field including primary care, emergency care, surgical care, dental care, counselling or therapy, and more. Not only can physicians be held responsible for medical negligence, related healthcare attendants such as nurses and pharmacists have a duty of care. NHS trusts, primary care trusts, and private hospitals may also be held liable for the negligence of their medical staff.
Examples of Medical Negligence:
- Failing to diagnose a patient’s condition – For example, if a patient’s symptoms are overlooked or dismissed as being inconsequential, this failure to diagnose could be construed as medical negligence under the “Bolam test” if the true diagnosis is likely to have been recognized by another ordinary, competent physicians and harm resulted.
- Making the wrong diagnosis – This is similar to the above. In addition, a wrong diagnosis could cause further harm in that inappropriate treatment may cause further harm.
- Prescribing or giving a patient the wrong medication – This can occur with misdiagnoses or by mistake. For example, if a condition is misdiagnosed, the treatment that follows is based on the wrong diagnosis. What if the physician writes down the wrong drug name by mistake, such as prescribing XYZ instead of ZYX? What if the pharmacist misreads the instructions and dispenses YXZ? These are all examples of potential medical negligence. However, remember that the patient must suffer harm as a result of the negligence. If the patient catches the error before ingesting the wrong medicine and no harm results, then a medical negligence claim cannot be fully established.
- The loss of a “chance” – In cases where a condition has a high likelihood of recovery, such as 50 per cent when discovered promptly, doctors could be held liable if the condition is not diagnosed because of the loss of a chance to recover (House of Lords 2002 Gregg v. Scott).
- Failing to obtain consent to treatment – In general, doctors must obtain consent before treating a patient. If the doctor fails to do so and proceeds with a treatment that causes harm to the patient, the patient may have a legitimate medical negligence claim.
- Failing to warn the patient about a treatment’s risks – Similarly, the physician has a duty to warn the patient of the risks of a treatment. Simply asking the patient to sign a consent form is not the same as discussing the risks involved.
- Making a mistake during an operation or procedure – Imagine going into surgery to have your left foot amputated due to an uncontrollable infection and waking up to find out that the surgeon amputated your healthy right foot by mistake. Medical mistakes during treatments and procedures are a prime example of medical negligence.
The First Steps
According to Patient.co.uk, if you suspect medical negligence in England and Wales, the Civil Rules of Procedure strictly apply (they do not apply in Scotland and Northern Ireland). The first step involves getting legal representation and filing a letter of claim. The defence is allowed a few weeks to gather evidence and respond. Next, the “particulars of claim” and “particulars of negligence” are filed and the other side presents its formal defence. Most of this occurs out of court.
Depending on the particulars of the case, it may wind up in court. However, the Medical Protection Society reports that fewer than 2 per cent of claims go to trial. Regardless, the first step is to obtain legal representation.
1. Clinical Negligence Claims – What to Expect (UK-England Factsheet). Medical Protection Society. [Online] May 2012. [Cited: August 21, 2012.] http://www.medicalprotection.org/uk/england-factsheets/clinical-negligence-claims-what-to-expect.
2. Simple Guide to Legal Action. Action Against Medical Accidents. [Online] [Cited: August 21, 2012.] http://www.avma.org.uk/pages/simple_guide_to_legal_action.html.
3. Clinical Negligence. Patient.co.uk. [Online] [Cited: August 21, 2012.] http://www.patient.co.uk/doctor/Clinical-Negligence.htm.
About the Author
This post was contributed by Daniela Levett on behalf of Pryers-Solicitors.co.uk – who specialise in medical negligence. Daniela is a freelance writer with extensive legal background as an attorney. She enjoys writing for various online legal publications.