One of the most common areas of litigation, certainly in terms of the increased number of claims, is medical negligence. A claim for medical negligence will often be brought against a doctor, or a particular hospital. This will be brought under the premise that the individual has suffered a loss due to the actions of the doctor or hospital and the individual believes they should be compensated as a result.
Whilst the field of medical negligence has some variations to other forms of negligence claims, the general law in regard to negligence must be proven in order to bring a successful claim.
Legal stages of a claim
The essential elements to a claim in negligence are as follows:
In order to bring a claim for negligence, a person must owe another a ‘duty of care’. The ‘neighbour principle’ established in the famous case of Donaghue v Stevenson sets out the legal basis of when a duty is owed. There is little need to delve too far into this with regard to medical negligence as very often the ‘duty’ will not be disputed. This is because there is an established principle that a doctor owes the patient a duty of care.
Whether the particular hospital or doctor has breached their duty to a patient will almost always be an issue in dispute in medical negligence cases. The standard when assessing if there has been a breach is generally that expected of a doctor. Each case will therefore turn on its own merits and may require expert evidence to assert if it was standard procedure to act as the doctor did.
In addition to any breach the claimant must show that the breach has actually caused the loss. In other words, but for the defendant’s actions the claimant would not have suffered the loss. If a defendant suffers a severe injury as a result of treatment, but it is likely that they would have suffered that injury anyway, there is no causation.
The claimant must have suffered a loss as a result of the defendant’s actions. If the defendant was clearly negligent but the claimant did not suffer as a result, then no claim can be successfully brought.
The claimant is under a duty to mitigate their loss; essentially, therefore, if a claimant injures their leg and then goes on a skiing holiday, it is clear the defendant cannot be liable for the further damage caused. In terms of contributory negligence, a claimant will have any compensation reduced if they have in anyway contributed to the loss by not taking the medication in accordance with medical advice, for example.
Practical stages of a claim
In addition to the legal stages of a claim, there are also practical stages. A claimant or their solicitor can request all medical record and documentation from the defendant, and the defendant should supply these within 40 days.
A letter of claim detailing exactly what the alleged offences are should be sent to the defendant and any claim should not be issued at court until at least three months after the letter of claim has been sent. During this period the claimant should try to provide all necessary information and documentation to the defendant to allow them to deal with the claim before it is issued at court.
The aim of the protocol is to try to ensure both parties are aware of all the facts and their own legal position so they can best analyse how the matter should be dealt with and hopefully reach some kind of settlement without having to go to court.
An adult must make a medical negligence claim within three years of the accident happening. However, there are exceptions to this for children, those under 18 when the accident happened and those with mental disabilities.