What is the Legal Action against Medical Negligence?

According to the statistics published by the NHS for the year 2023/24, 81% of all medical negligence claims were resolved outside court, usually through negotiation between the patient and the NHS trust or their private medical provider. However, some more complex cases go to court. That is why it is important to define what is meant by medical negligence and explain how it is proven before giving an overview of the legal procedure. In most cases, you may want to seek legal advice from a medical negligence solicitor because they have the right tools and knowledge to help the patient fight their case.

What is Medical Negligence?

Medical Negligence occurs when a patient receives substandard care for a medical condition, they have been diagnosed with resulting in further injury or the condition worsening. Examples of medical negligence can include misdiagnosis, incorrect treatment, and infection caused by poor hygiene. It is important to note that this can happen at any stage of the medical treatment from the initial consultation to patient discharge. However, before taking action it is essential to prove medical negligence.

How To Prove Medical Negligence

Firstly, we must stress that healthcare professionals have a duty to care for their patients. It means they must ensure the person under their care is receiving appropriate treatment so that their condition improves. This responsibility includes correct diagnosis, formulating an appropriate treatment plan, and ensuring the patient is comfortable. If the medical professional fails in those duties, they are in breach of their duties. However, the patient must prove the treatment has caused them harm resulting in damage or loss to have a medical negligence case.

To prove medical negligence, a solicitor will often ask their client to gather the necessary evidence. This includes requesting medical records from the institution that treated the patient as well as from other hospitals or clinics where the patient has previously been treated so the medical negligence solicitor can build up a full picture of the patient’s medical history.

Once the solicitor has those documents, they will attempt to gather further evidence from witnesses such as the patient and anyone who has been in contact with them. This is because messages regarding the victim’s health and photographs proving malpractice are information that can be used to build up a case.

After gathering all the necessary evidence relating to the patient’s treatment, the medical negligence solicitor will pass it on to an independent medical expert who can assess whether the patient’s care breached current medical guidelines. Usually, the expert overseeing the case will have worked in a similar role to the professional in question and possess similar qualifications, so they can also prove causation of the aggravation of the patient’s medical condition.

Once it is proven the procedure or treatment, they underwent caused the patient’s health to deteriorate, and in some cases a loss of income. To do that, the solicitor will rely on reports provided by independent experts in fields such as accommodation or occupational therapy as well as records of expenses including receipts for specialised equipment. This is a crucial step of the process because the solicitor can then try to get the best compensation package for the patient.

The Legal Procedure of Claiming For Medical Negligence

Once you have contacted a clinical negligence solicitor and the patient has proven they have a claim, you can then engage in the process of obtaining compensation for the harm caused by the medical practitioner’s negligence. However, it is important to note that very few of these claims go to court, this is because each NHS trust or private medical provider will have a complaints procedure they must follow.

If the patient’s solicitor is satisfied there is enough evidence to take the claim forward, they will present the claim to the defendant. This is done by sending a letter and a formal document that presents the extent of the harm caused by medical negligence, along with the supporting evidence and the compensation the patient is seeking from the defendant. Doing this signifies the patient's intentions to the opposing party’s legal team, after which they have 14 days to acknowledge they have received the letter.

Upon receiving the claimant’s letter, the defendant has 4 months to investigate the allegation and respond to the letter. Leaving them enough time to conduct their investigation with the help of their legal team which may involve reviewing the patient’s medical records, obtaining expert opinions of their own, and gathering any evidence relating to the case. Once the internal investigation is complete, the defendant will send a response letter that clarifies their position, several of which are possible.

1. The defendant admits either full or partial liability which means both parties can start negotiations around compensating the plaintiff. For this to happen, the patient’s legal representative will collaborate with the defendant’s team to agree on a fair amount based on the evidence provided.

2. The defendant denies liability which means the patient’s solicitor must review the new evidence presented to them. Based on this information, they will inform the patient of the best course of action to take. This can involve seeking more evidence, gathering further expert opinions, or preparing for court proceedings.

3. The defendant makes a settlement offer that the patient’s solicitor will discuss with the patient and advise whether it is reasonable based on the evidence provided. If the offer is accepted, then the case is closed, but if it isn’t the medical negligence solicitor will negotiate with the defendant in a bid to obtain a more suitable offer.

When does a Medical Negligence case go to court?

The only reasons a medical negligence case goes to court is when the defendant denies liability or if negotiations to compensate the patient fail. That’s why even though most cases don’t go to court, it is necessary to prepare for this eventuality. If such is the case, there are specific steps the patient and their legal must follow.

First of all, they must formally issue court proceedings by filing a claim and particulars with the court. These include details of the allegations, the harm the patient has suffered, and the compensation they are seeking. Then, they must serve the claim to the defendant by sending the same documents they did to the court. This ensures the defendant has sufficient time to file a defence, outline their position, and provide any additional evidence. Finally, the patient and their legal team must prepare to go to court by working together to refine the case, gather extra evidence and seek further financial evidence to support the patient’s claim.

However, filing a court case for medical negligence doesn’t necessarily lead to a trial as more often than not, both parties will try to come to an agreement before it.

Seeking Legal Expertise is Vital

Getting advice from a law firm that specialises in medical negligence claims such as Eatons because it is a lengthy process which requires gathering the most evidence possible including statements from experts. Moreover, by relying on legal expertise, the patient is more likely to reach a desirable outcome.