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How to Prove Medical Negligence in A Compensation Case?

What Evidence Is Needed To Prove Medical Negligence And How Do I Do It?

By Stephen Lawson. Last Updated 29th July 2021. On this page, you will find advice and information on how to prove medical negligence, and on the process of making a compensation claim once clinical negligence is proven. There is a personal injury claims time limit of three years, so as long as you are within this limit, this guide will be of use to you.

If you don’t have the time to read all of this guide, then you can contact Legal Expert on 0800 073 8804, and we will do our very best to answer any questions you may have, and get your clinical negligence claim started.

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A Guide On How To Prove Medical Negligence

how to prove medical negligence

Medical negligence claims

This guide on proving medical negligence is intended to teach people all about the process of proving liability in a clinical negligence claims case. It also fully details the process that a personal injury lawyer will follow on your behalf to make personal injury claims. You will not find a personal injury claims calculator on this page; these are simply gimmicks that tend to give the claimant an inflated idea of just how much compensation they might be able to claim in clinical negligence compensation. Instead, we provide solid figures based on historical claims, so you can get a more accurate idea of the claim amount. This guide contains additional information, including:

  • A full definition of what medical negligence is, how it is caused, and some of the more common ways it will be manifested.
  • Information about the type of evidence you are going to need to prepare to prove that a medical professional is guilty of clinical negligence.
  • Details of the medical negligence claims process, and why you will need to prove the negligence took place in order to make a claim.
  • A list of the steps you can take to help prove that a medical professional has been guilty of clinical negligence.
  • Information about the duty of care that ever medical professional has towards their patients at all time.
  • A description of the “But For” rest, what it is and how it is useful for establishing liability in a medical negligence claims case.
  • A list of all the typical types of damages a person might be able to claim in their settlement for a case of clinical negligence.
  • A full overview and introduction to the claims service that Legal Expert makes available to all residents of the UK under a Conditional Fee Agreement (CFA).

If you don’t have time to read all of this guide or have some questions left unanswered once you have read it, then please call Legal Expert on the telephone number that you will find in the final section of this guide, so we can help you further.

What Is Medical Negligence?

Here, we are going to try and give a good definition of medical negligence, and how it happens. This is vital information for making medical negligence claims. It will also help you see how to prove medical negligence. Clinical negligence revolves around a breach of duty of care (more on this below) by a medical professional.

Every medical professional including nursing and care staff are expected never to do anything that could lead to a patient under their care coming to harm in some way. This harm could be physical, or it could be psychological. When a patient comes to harm in this way, clinical negligence will be deemed to have occurred. Medical negligence can happen in a number of ways, such as:

  • Oversight – for example, failing to notice a new medical condition a patient has contracted.
  • Mistake – for example, prescribing the wrong medication.
  • Omission – for example, failing to provide a patient with the correct treatment.
  • Accident – for example, an accident during a surgical procedure which causes physical damage to the patient.

If you need to prove medical negligence occurred so that you can make a compensation claim, call Legal Expert on the number at the end of this guide so that we can help you.

What Evidence Do You Need To Prove You Experienced Medical Negligence?

medical negligence claims statistics

Source – http://libertarianadvocate.blogspot.com/2009/10/litigation-increases-medical-costs-but.html

Take a look at the graph above; it can clearly be seen that cases of clinical negligence have been on the rise in the UK for some time. Proving that a medical professional failed in their duty of care would have been a pivotal aspect of each claim. To prove a medical negligence case, evidence would have been submitted to prove clinical negligence took place. Evidence needed to prove medical negligence Includes:

  • A full statement from the patient who suffered due to the clinical negligence of how it occurred, and the harm it caused them.
  • The medical records of the patient, which can be used as a basis for uncovering the key facts of how the negligence harmed the patient.
  • Photographs or video footage that show the harm caused, and potentially the external factors that caused the harm.
  • Witness statements if any third party has relevant information.

Legal Expert can arrange for you to receive a local medical examination, the results of which can be submitted as evidence in your clinical negligence claim case. Call us at the number at the end of this guide to find out how to arrange this.

Medical Negligence Claims And Proving Them

Now we will look specifically at how to prove medical negligence. When it comes to proving medical negligence UK solicitors will need to prove that a number of conditions were true. These conditions relate to the duty of care medical negligence cases typical display including:

  • The medical professional involved had a clear duty of care towards the victim.
  • The medical professional involved failed in their duty of care in some way, causing harm to the patient.
  • The medical professional involved could have avoided harming the patient if they had not failed in their duty of care.
  • The harm to the patient has resulted in physical damage, financial losses, etc. that will form the basis of the compensation claim.

Legal Expert can offer more advice on proving liability in medical negligence cases, once we know a little more about your own case. Call us on the number down at the end of this guide so we can learn about your case and advise you on the best way to prove negligence took place.

What Steps Can You Take To Prove Medical Negligence?

Now you have seen how to prove medical negligence, what steps can you take? There are a number of ways that you can help your personal injury solicitor to prove medical negligence took place. Information is the key here, the more information that supports your claim, the better chance you have of winning a compensation payment. This information includes both details of the clinical negligence itself, as well as the effect it has had on your life.

Keeping any receipts that relate to costs that you have injured due to the injury or illness that was caused by clinical negligence is also important, as these will be used to work out how much you will seek in special damages. Examples of this include:

  • Travel costs – to heave the injury or illness treated.
  • Loss of earnings – if you had to take time away from work due to the injury or illness.
  • Medical fees – if you have had to pay out of your own pocket for any treatment of the injury or illness.
  • Ad-hoc costs – such as buying special equipment to help you while you were suffering from the injury or illness (crutches, braces, etc.).

In a later section of this guide, we will cover the types of financial losses and physical damages you may be able to claim for in your own clinical negligence case.

Legal Expert will be able to give you a better idea of what you can claim for once we know a little more about your case. Give us a call on the telephone number at the end of this guide to proceed with this.

Medical Negligence Breach Of Duty Of Care

To begin medical negligence cases, the claimant will need to prove that a medical professional had failed in their duty of care in some way, causing harm to the patient. As outlined in the medical negligence definition section at the top of this page.

Every medical professional is expected to use proper care in the disbursement of their duties towards their patients. This legal requirement is termed the “duty of care”, and it applies in every relationship between a patient and a doctor, nurse, specialist, surgeon, GP or member of the care staff of a hospital. When this duty of care fails, then this will be deemed to have been negligent on the part of the medical professional.

There is a grey area though. A failure in the duty of care does not automatically trigger the patients’ rights to make a compensation claim. The patient must prove that the failure in duty of care directly led to their worsened health, and not the medical condition they were being treated for.

Proving liability in a clinical negligence case can be a complex proposition and one that Legal Expert can assist you with. Call us on the telephone number down at the bottom of this page to learn how we can help. You can also learn more about the General Medical Council complaints procedure here.

What Is The ‘But For’ Test?

When looking at how to prove medical negligence you need to understand the ‘but for’ test. One of the main tools for proving medical negligence UK solicitors use, us known as the “But For” test. This test does not uncover the cause of medical negligence, but it does discern whether negligence actually took place.

“But For” is a test that was put in place by the Bolam v Friern Hospital Management Committee. Using this test, the medical professional is required to prove that they provided all expected standards of care to a patient, and this proof will be evaluated by a body of associated medical professionals. If this board of doctors agrees with the medical professional in question, then it will be ruled that clinical negligence did not take place.

If the board of doctors agree that the medical professional was indeed negligent in some way, it then must be proven that it was the negligent action that actually harmed the patient. In other words, if the doctor had not been negligent, would the patient still have come to the same harm?

Just because a claimed case of medical negligence fails a “But For” test does not mean you won’t be able to make a compensation claim, it will just be very much harder to prove liability.

It should be noted though, that the medical professional will have been judged by a professional board of his peers and found to be guilt free with regards to the alleged clinical negligence that took place. Proving that the medical professional did indeed cause harm to the patient, will have to rely on external factors unrelated to the hospital or private healthcare provider the doctor was working for at the time the incident took place. In short, the medical facility the doctor was working for, has already decided that it, as the ultimate authority for the doctor, is not guilty. Therefore, in these cases, it is far more likely that a settlement will not be reached out of court, and the claim will almost definitely need to be made by a court decision in favour of the claimant.

Legal Expert can help with getting around a case of medical negligence that has been refuted by both the medical professional themselves, and a judiciary boards of doctors who have ruled that the negligence either did not take place or caused no harm to the patient using the “But For” format of tests. Call us on the telephone number down towards the bottom of this guide in the final section so we can help you within this.

What Can I Claim After Proving Medical Negligence?

When you make a personal injury claim for medical negligence, if you are successful in your claim, then the compensation you receive will be made up of a number of different types of damage pertaining to the pain and suffering of the injury and illness, as well as any financial losses you have faced due to the injury or illness. Typical damages that your overall settlement include are:

Claiming General Damages

Under the category of general damages, we find all the purely physical aspects of the injury or illness as well as its treatment and long-term prognosis, general damages can include, but are not limited to:

  • A permanent change in life quality – if for example, your injury or illness has resulted in a permanent disability that will lower the quality of your life.
  • Long-term recovery effects – during a long recovery period, if you are in constant pain and suffering, then you can claim compensation for this.
  • Psychological damage – if your injury or illness has resulted in you contracting additional psychological problems such as new phobias, depression and anxiety you will be able to claim for them.
  • Pain and suffering – caused by the initial injury or illness and also caused by the initial treatment you received. For example, if you slipped and broke a leg, there would be pain associated with both the accident itself and having your leg treated.

Claiming Special Damages

Under the category of general damages, we find all the purely non-physical aspects of the injury or illness. Primarily this will relate to financial losses the claimant has occurred, but it could also relate to ad-hoc damages such as missing the wedding of a child, an event that will never be repeated. However, typically under general damages, we find the following types of losses being compensated:

  • Loss of future earning potential – if the long-term or permanent prognosis for recovery from the illness or injury is that you will have a reduced capacity to work.
  • Loss of current earnings – if you have had to take an extended period away from work while the illness or injury heals, and you have lost out on income.
  • Medical costs – int eh case that you have to pay for some type of medical care as a result of the injury or illness you can claim these costs back.
  • Care costs – if you have had to employ somebody to help you around the house, or to provide medical care at home, then you can claim these costs back.
  • Travel costs – to reimburse you for any travel you had to undertake to get the injury or illness treated or in regard to the claims case itself.

To get a much more accurate idea of the types of damages you can claim, call Legal Expert on the number at the bottom of this page.

Examples Of Medical Negligence Payouts

When making medical negligence claims, the amount of compensation you could receive depends heavily on what type of injuries you’re claiming for and how severe they are. You can view the table below to see compensation brackets for different injuries you may claim for as part of your claim under general damages:

InjurySeverityCompensation
Illness/Damage Resulting from Non-traumatic InjurySevere£36,060 to £49,270
Illness/Damage Resulting from Non-traumatic InjurySerious But Short-Lived£8,950 to £18,020
Illness/Damage Resulting from Non-traumatic InjurySignificant Discomfort For A Few Weeks£3,710 to £8,950
Illness/Damage Resulting from Non-traumatic InjuryDisabling Pain For Some Days Or Weeks £860 to £3,710
Mental AnguishFear Of Impending Death/Reduction In Expectation Of Life£4,380
Psychiatric Damage GenerallySevere£51,460 to £108,620
Psychiatric Damage GenerallyModerately Severe£17,900 to £51,460
Psychiatric Damage GenerallyModerate£5,500 to £17,900
Psychiatric Damage GenerallyLess Severe£1,440 to £5,500

The compensation brackets featured in the table are taken from figures provided by the latest Judicial College guidelines. The brackets are based on payouts given out in past compensation claims. Solicitors working on a medical negligence claim may use these brackets as guidance to work out the value of injuries.

The brackets do not guarantee the amount of compensation you’ll receive when making your own claim. They can, however, at least give you an indicator of the general amount that may be offered depending on what exact injuries you’re claiming for.

For a properly calculated estimate of the level of damages you might claim, call Legal Expert on the number below to find out.

No Win No Fee Medical Negligence Claims

Worries about legal costs can be a concern when claiming compensation. Legal Expert offers our No Win No Fee clinical negligence claims service as the simplest and most risk-free way to make such a claim. We won’t charge anything when we start to claim on your behalf, and even if it takes many months to resolve your claim, we won’t ask you to pay anything either. If we fail at making your claim, you still pay nothing. If we do make a claim for you though, this is when you pay our fees.

Call Legal Expert on the number below to find out more about our national clinical negligence claims service.

Why Legal Expert Are Best Placed To Help You

Once you have seen how to prove medical negligence why should you contact our team? Legal Expert can connect you with expert medical negligence NHS solicitors who have the knowledge and experience to take on complex clinical negligence cases and win. Our legal team will always be on hand to answer any questions you have, and we will keep you updated every time some aspect of your case changes. We use simple, easy to understand English and not complicated legal speak to do this.

We will aim to claim for you the highest amount of compensation we can and do everything possible to ensure that your claim succeeds. Call us on the number below to learn more about how we can help you.

Contact Our Specialist Team Today

We hope our updated guide on proving medical negligence has helped you. Are you ready to begin a claim for damages for harm that was caused to you by the clinical negligence of a medical professional? If you are, then you can call Legal Expert now on 0800 073 8804. Once we have spent a little time asking you about the events that led to your coming to harm, we will offer you some free legal advice on what we think you need to do next.

Useful Links On How To Prove Medical Negligence

A guide to claiming compensation for misdiagnosis medical negligence claims

If you want to claim misdiagnosis compensation contact our experts today for free legal advice.

At the link below, you will find statistics for cases of medical negligence in the UK published by the Department of Health:

Department of Health clinical negligence statistics

At the link below, you will find a full and detailed guide to making compensation claims for medical negligence:

A guide to medical negligence claims

At the link below, you will find a full and detailed guide to making compensation claims for hospital infections:

A guide to hospital infection claims

At the link below, you will find UK Government information about fixed cost clinical negligence claims:

UK Government information on fixed costs negligence claims

At the link below you can find out more about Clinical Negligence Scheme for General Practice

UK Government Legislation

How To Prove Medical Negligence FAQs

In the following section, we answer some of the commonly asked questions about how to prove a medical negligence claim. 

Does your claim have to be against an NHS Doctor? 

Neither the compensation or complaints procedure which we have looked at in this guide are limited to action against NHS doctors. Any healthcare practitioner could harm someone through negligence. It could be an NHS doctor or nurse, or it may be a private dentist or optician. 

If any of these medical professionals has caused you harm through clinical negligence, you could make a claim against them. 

Is there a time limit for a medical negligence claim? 

In general, medical negligence claims have to be brought within a three period. This could begin when the negligence occurred or it could begin when the person became aware of the harm suffered. There are times when there are exceptions to the three-year rule. If the victim of medical negligence is under the age of 18 or if they do not have the mental capacity to make a claim then a different time limit may apply. 

It should also be noted that in certain instances a judge could make an exception to the time limit. However, this is unlikely.

What qualifies as medical negligence?

An incident can qualify as medical negligence if it involves a medical professional causing harm to a patient through an action or inaction which they reasonably could have avoided taking. Medical negligence can come in several forms including mistakes, accidents, oversights and and omissions.

What are some examples of medical negligence?

Examples of medical errors which could potentially be caused by negligent behaviour can vary a lot. Specific incidents can include (but are not limited to) a misdiagnosis, surgical errors, an incorrect medication prescription or inadequate aftercare.

Thank you for reading our guide on how to prove medical negligence.

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