What is clinical negligence?
Clinical negligence, formerly known as medical negligence, is the claim that a patient has suffered unusually, or unnecessarily, due to the actions or advice (or lack thereof) of medical professionals.
In order to take a Health Care Professional (HCP – a doctor or nurse) to Civil Court, the claimant must prove both liability and causation. Liability means that the claimant must show that the HCP must have been found to have acted in a manner that no other similar professional would have done. Causation means that the claimant must show that harm has resulted which would not have otherwise occurred.
How can I prove liability?
There are two tests of liability as defined by English tort law. The first is the Bolam test, which finds that a person is not negligent who is acting in accordance with a practice accepted as proper and responsible by a body of professionals, i.e. their peers. They do not necessarily have to be the most astute doctor, or a professor of General Surgery, but an ordinary and competent doctor.
The second is the Bolitho test, which finds that a defence cannot be based upon a practice that is not reasonable or logical – even if it is the current practice of ‘a body of responsible doctors’.
How long do I have to claim?
The limitation time on a clinical negligence claim is three years from the time of knowledge of harm suffered. There can be exceptions to this:
- if the claimant was under 18 at the time of the incident, in which case there is no time limit
- if the claimant was mentally ill at the time, in which case the limit is three years from the time of their recovery
- at the discretion of the Court.
What counts as clinical negligence?
Generally speaking, there are nine kinds of negligence that can be claimed for in the UK:
- Birth injury – damage, disability, or injury caused to the mother and/or child during the birth process.
- Hospital negligence – for example, if the incorrect kidney was removed, or if a surgical instrument was left behind in the body cavity.
- Dental negligence – for example, if the dentist incorrectly reads an X-ray, resulting in removal of a healthy tooth.
- Negligent medical advice – for example, failing to fully inform the patient of the risks and/or side effects of a surgery, leading to injury or distress.
- Negligent nursing – in much the same way as doctors, nurses (who are responsible for your treatment or health) can also make mistakes and be held liable.
- Negligent diagnosis – a mistake or failure to diagnose an injury or illness.
- Sterilisation failure/failed abortion – a woman can, in theory, claim compensation for the pregnancy and birth of a child whom she did not intend to, and took actions not to, conceive.
- Battery – when a claimant is subject to a surgery or procedure without their consent. One example of this could be a woman who is forced to undergo internal examinations during labour, without being given the chance to consent.
If you or a member of your family has been the victim of clinical negligence, contact the Free Legal Advice Centre.