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Medical Negligence - Two Minute Guide

If a person suffers injury due to medical (or clinical) negligence (e.g. in the course of an operation), they may be entitled to claim damages. All doctors owe their patients a duty of care and a claim may be made based on the law of tort. In the private healthcare system there may also be a claim under the law of contract.

To claim compensation for clinical negligence a claimant must prove that the doctor or other healthcare provider made a serious error which was the result of negligence and that the medical error(s) made a material contribution to the injury. A claim must normally be made within three years of the incident or within three years of the eighteenth birthday of someone injured as a child. Sometimes this can be later than the third anniversary of the event if the date of knowledge is later. Claims against the HNS are dealt with by the NHS’s own litigation body, NHS Resolution.

To establish sufficient causation for a successful claim, the general standard is that on the ‘balance of probabilities’ the negligence was a material cause of the harm. If there was only a ‘loss of a chance’ (i.e. correct treatment of the claimant’s condition would only have had a small chance of success anyway), it is unlikely there will be sufficient causation. If the claimant was particularly vulnerable to a certain disease or illness due to a pre-existing condition, it will be difficult to establish causation if their condition was likely to deteriorate in any event.

Clinical negligence claims are particularly complex due to the scientific issues involved – experts frequently disagree about material causation, so there is often little certainty in this area of law. In addition, the long-term effects of injuries due to medical negligence are often not ascertainable for several years. For these reasons claims tend to take a long time to settle and often settlements are made on an interim basis with subsequent revisions.

If you think you have suffered injury from medical negligence you should seek professional advice. We will guide you through the whole process.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.