Insights

BCR Explores Law – Clinical or Medical Negligence Claims

July 29, 2021

What is clinical or medical negligence?

A claim in clinical or medical negligence is a civil claim for compensation for an injury suffered as a consequence of the actions (or omissions) of a medical professional or organisation in connection with a patient’s medical treatment or care. In order to be successful, the patient (who becomes known as the plaintiff) has to establish, on the balance of probabilities (i.e. that it is more likely than not) that:

  1. The treating professional owed a duty of care;
  2. There was a breach of that duty; and
  3. Harm followed as a result.

Duty of Care

The ‘duty of care’ is a legal obligation. The duty of care is a person’s duty to take reasonable care to avoid acts or omissions that could reasonably foreseeably harm another. A duty of care arises in most circumstances when a patient receives medical treatment or care – the medical practitioner providing treatment has assumed some sort of responsibility for the patient’s care and is therefore under a duty to act in accordance with the relevant standard of care to be expected. The only exception may arise in the case of a professional volunteer helping at the scene of an accident.

Standard of Care

In the case of a clinical or medical negligence claim the standard against which the relevant professionals will be judged is the standard to be expected of an ordinarily competent practitioner performing the particular task or role. The medical professional is not judged against a paragon in the field. A doctor, nurse or other health professional is not negligent if they act in accordance with a practice accepted at the time as proper by a responsible body of medical opinion, even though some other practitioners adopt a different practice. If the medical professional acted, or failed to act, in a manner inconsistent with that standard of care then they will have acted in breach of duty.

Harm

A plaintiff also needs to establish that some form of harm occurred as a result of the breach of duty of care. The harm has to be caused by the breach of duty. This is known as causation. The general rule is that a plaintiff must establish that their injury would not have happened ‘but for’ the negligence of the medical practitioner. The harm may be physical or mental injury. It may be a degree of additional pain and suffering over and above what would have been suffered in any event (for example, where recovery takes longer than it otherwise would have done because of the negligence of the medical practitioners involved).

Timescale

A claim for damages in clinical/medical negligence must be brought within certain timeframes. Where there is no contract between the patient and the medical professional (i.e. where the treatment was received free of charge under the provisions of the Jersey Healthcare System) any claim must be brought within three years from either the date of the breach of duty of care or from the date when you became aware of the breach of duty of care (the date of knowledge). Where there is a contract (for example, where treatment was obtained privately) any claim must be brought within 10 years from either the date of the breach of duty of care or from the date of knowledge.

Time limits can be suspended from running where there is some legal or factual impediment which prevents a claim from being brought. In the case of children, for example, the date of knowledge is, by law, assumed to be the date on which they achieve their majority. This means that the three or ten year period only starts to run from the date of their 18th birthday. Again, time limits are suspended where patients are deemed to lack the mental capacity to conduct their own affairs.

Compensation

Compensation consists of two elements.

  1. General damages are designed to compensate a plaintiff for any pain, suffering and loss of amenity caused by the negligent acts or omissions. Loss of amenity refers to a plaintiff’s inability to do, whether permanently or for a period after the negligence, certain activities which the plaintiff could and did do before the negligence. General damages are usually relatively modest and are calculated by reference to the Judicial College Guidelines, produced in the United Kingdom (no Jersey equivalent exists), and damages previously awarded in similar cases.
  2. Special damages are designed to compensate a plaintiff for losses suffered as a consequence of the negligence, both since the negligence and into the future. An award of special damages might be made where a plaintiff has been unable to work since the negligence and has suffered a loss of earnings, or where the plaintiff has had to incur medical fees and expenses, or requires care or adaptations to their home to cope with the impact of the injuries suffered.

How to make a claim

Initially one needs to obtain a copy of the plaintiff’s clinical/medical notes or records associated with the treatment. Review of the records sometimes allows a plaintiff to understand what decisions were made and why they were made. It may be that the particular injury was a known risk of that treatment or procedure and one about which the plaintiff had been properly informed. Equally, it may be clear from the records that something has gone wrong.

Once the records are obtained an independent medical expert is ordinarily instructed to review the records (and potentially examine the plaintiff). The independent medical expert will prepare a report in which the acts or omissions of the relevant medical practitioner(s) are considered and set against the benchmark standard of care; i.e. did the medical practitioner in question act in accordance with a practice accepted at the time as proper by a responsible body of medical opinion? If the expert’s report is supportive then consideration may still need to be given as to causation – did the breach of duty of care cause any injury to the plaintiff? Further independent medical expert evidence may be required to consider this aspect of the claim.

If time allows a pre-action letter of claim should be sent to the defendant (usually this would be the organisation employing the relevant medical practitioners). The letter of claim sets out the circumstances of the claim and why the plaintiff considers the defendant acted in breach of their duty of care. The letter of claim should also provide a brief description of the injuries which resulted from that breach of duty and, if possible, an indication as to the likely value of the claim. If the time period within which to bring a claim is about to expire then a plaintiff may have to skip the letter of claim in order to ensure that the deadline for bring the claim is no missed.

How long does a claim take?

There is no simple answer to this. Once a claim has been started it can only end by: (1) being abandoned (i.e. the plaintiff withdraws the claim); (2) settlement (i.e. the parties reach agreement); or (3) trial. The length of time a case takes will depend on its complexity, the approach of the other parties, the availability of experts and the availability of the Court. From start to finish most claims take between 12 to 24 months to complete. However in complex cases claims can take significantly longer.

Legal advice

As with all civil claims, it is entirely open to a plaintiff to represent themselves. If possible, however, the early engagement of a specialist lawyer is often a better option. Clinical negligence claims are generally not straightforward and establishing breach of duty and causation can be notoriously difficult. Professional advice should be sought from a lawyer with expertise in the field of clinical negligence. You will receive advice and guidance as to what steps will be required to establish the claim, the level of compensation you may be entitled to, and the procedural steps which must be undertaken.

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