Posted On / 26.09.2017

Medical Negligence – What it is and What it is Not

There are many inaccuracies and misleading stories about bringing legal claims against healthcare providers. Hospital blunders are often reported in the newspapers, and it is true that some of these are connected to successful legal claims. However, claims for clinical negligence are far from simple affairs. It may seem odd, but a mistake does not necessarily mean a claim.

Hence, the title of this article. This very description was used by Florence Nightingale in the title of her book when she penned ‘Notes to Nursing’ in 1859, and explained the fundamentals of nursing – ‘what it is and what it is not’.

Clinical negligence (also known as medical negligence) is a branch of personal injury litigation.

Clinical Negligence does encompass claims against Hospital Trusts (both NHS and private) but also includes GPs dentistry, cosmetic surgery, pharmacy errors, care home negligence and all other treatments and therapies provided to a patient.   

What Makes a Claim?                                              

The principles of negligence dictate what has to be proved to win a claim.  

Firstly it is important that the care or treatment has been provided in a professional capacity, as opposed to friendly advice from a relative or well-meaning friend. Passing on old wives’ tales will not result in a claim.  

Secondly, that professional advice must have fallen below the standard of a reasonably competent professional. This can take many forms;

  • Missing symptoms Failing to refer for specialist treatment
  • Errors during an operation
  • Failing to correctly analyse specimens or samples
  • Prescription or dispensary errors
  • Inadequate nursing care Misdiagnosis and wrong treatments.  

Thirdly, although it may seem on the face of it unquestionable that an error would lead to some sort of illness or injury, for a successful clinical negligence claim, it must be shown that the illness or injury only happened because of the error, or that the error was at least a material cause of the injury or illness.

This is where many clinical negligence cases fail. Cases involving delay carry particular challenges.

When does a Delay make a Claim?

Delays are not uncommon in our overstretched NHS but not all delays will support a successful legal claim. A delay in a nurse responding to a call bell is very different to a delay in referral for cancer screening.  

In analysing whether a claim exists, identifying whether it was really a delay or just an acceptable waiting time is important. This is determined by looking at the presenting symptoms and considering the usual waiting time.    

It is then necessary to identify what has happened to the patient in the intervening period, ie what happened during that delay; did things worsen significantly/did those changes mean different or more serious treatments were required?    

Many cases have been seen involving a delay in referral from primary service (GP) to secondary service (usually a Hospital Trust). To establish if a claim exists, it is necessary to the review of the history of the complaint, the frequency of reporting symptoms to the GP and the actions taken by the GP during that period. Only then can it be established if there was undue or negligent delay and a claim will still only follow if that delay resulted in a serious deterioration in the condition.  

Help with Complaint and Claims

Hospitals and healthcare providers are central in our society and we rely on the NHS and other healthcare providers to enable us to enjoy life. At Battens, we recognise that much good work is done by excellent individuals.   We also know how important good care is for individuals and for society as a whole. However, sadly errors are not unknown, and it is in these cases that Battens are ready to step up, advise and assist.  

Complaining first is often a good starting point. Certainly, if your incident involves poor service but no detriment to your condition, a complaint is the way to go. Raising complaints ultimately helps build better standards: it is a positive tool 

At Battens solicitors, we put our experience to good use in identifying the relevant issues straight away and providing our clients with accurate and sympathetic advice and help.   We can help with complaints and claims.

We will meet you, listen to you and identify the relevant factors. If we consider that there is a potential claim we will review your case for a No Win, No Fee type arrangement and plan the investigations required to bring your case to a successful conclusion as quickly as possible.  

Recently, we have been able to assist a client obtain substantial damages in a case involving a very simple administrative error but which had serious complications. A failure to arrange an elective follow-up examination resulted in the patient slipping through the net and caused delay in planned treatments. This in turn led to a serious deterioration in health, and our client required complex and major surgery to correct the new problems. Our thorough and efficient approach led to settlement within months. 

We will seek compensation and apologies on your behalf. An apology can help repair and rebuild confidence. Money is not the answer to everything, but when you have suffered and feel let down, it really can help make amends and support you on the road to recovery.  

To us you will always be a name, not a number. If you or someone you know has suffered medical negligence, get in contact with us to see if we can help.

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