Clinical Negligence.

Clinical Negligence Claims

Clinical negligence occurs when a healthcare professional or organisation provides care below the legally acceptable standard, causing avoidable injury, deterioration, or loss.

A patient is not entitled to compensation simply because treatment was unsuccessful, complications occurred, or a mistake was made. A successful claim must normally establish:

• that the healthcare provider owed the patient a duty of care;
• that the duty was breached because the care fell below the required standard;
• that the breach caused or materially contributed to injury; and
• that the injury resulted in compensable loss or damage.

This guide principally covers clinical negligence claims in England and Wales. Different procedural and limitation rules apply in Scotland and Northern Ireland.

Who Can Be Responsible?

A claim may arise from treatment provided by:

• NHS hospitals and trusts;
• GP practices;
• private hospitals;
• doctors and surgeons;
• dentists;
• nurses and midwives;
• pharmacists;
• physiotherapists;
• mental health professionals;
• care providers;
• ambulance services; and
• other regulated healthcare professionals.

The correct defendant depends on where the treatment was provided and who was legally responsible for theclinician'ss work.

Common Types of Clinical Negligence

Claims may involve:

• delayed or incorrect diagnosis;
• failure to refer for investigation or specialist treatment;
• surgical errors;
• medication and prescribing errors;
• birth injuries;
• poor maternity care;
• failure to monitor a patient;
• inadequate postoperative care;
• failure to act on test results;
• infection-control failures;
• incorrect dental treatment;
• avoidable pressure sores;
• mental health treatment failures;
• poor emergency care;
• failure to obtain informed consent; and
• defective medical equipment or products.

Each case depends on its own facts and usually requires independent expert medical evidence.

The Standard of Care

Healthcare professionals are not expected to guarantee a successful outcome. They must exercise the care and skill reasonably expected from an appropriately competent professional in the relevant field.

A clinical decision will not necessarily be negligent merely because another clinician would have chosen a different treatment.

The court will consider matters such as:

• the patient's condition at the time;
• the information reasonably available;
• accepted clinical practice;
• the risks and benefits of available treatment;
• the urgency of the situation;
• the clinician's speciality; and
• whether the decision had a logical and responsible medical basis.

Proving Causation

Proving poor care is not enough. The claimant must also show that the breach caused injury or materially worsened the outcome.

For example, a delayed diagnosis may be negligent, but compensation will depend on whether an earlier diagnosis would probably have changed the treatment, prognosis or outcome.

Causation can be difficult where:

• the patient already had a serious illness;
• the same injury might have occurred despite proper care;
• several clinicians or organisations were involved;
• there were several possible causes;
• the condition naturally deteriorated; or
• the treatment involved recognised unavoidable risks.

Independent experts may be required to address both breach of duty and causation.

Consent to Treatment

Patients should normally receive sufficient information to make an informed treatment decision.

This may include information about:

• the proposed treatment;
• material risks;
• reasonable alternatives;
• the option of having no treatment;
• likely benefits;
• possible complications; and
• the consequences of delay or refusal.

A consent form does not by itself prove that valid informed consent was obtained.

A claim may arise where a material risk or reasonable alternative was not discussed, and the patient can show that proper advice would have affected their decision and avoided the injury.

Emergency treatment and treatment of patients who lack decision-making capacity are subject to separate legal principles.

Medication Errors

Medication claims may involve:

• the wrong medicine;
• the wrong dose;
• administration to the wrong patient;
• failure to consider allergies;
• dangerous drug interactions;
• failure to monitor treatment;
• incorrect dispensing instructions; or
• failure to warn about important risks.

A medication mistake will not automatically result in compensation. The claimant must show that it caused injury, additional treatment, financial loss or another compensable consequence.

Delayed and Incorrect Diagnosis

A claim may arise where a healthcare provider fails to investigate symptoms, interpret test results or refer the patient appropriately.

Examples may include delayed diagnosis of:

• cancer;
• sepsis;
• stroke;
• heart attack;
• fractures;
• meningitis;
• cauda equina syndrome;
• ectopic pregnancy; or
• another serious condition.

The claim must normally establish that a competent response would probably have led to an earlier diagnosis and a materially better outcome.

Surgical and Treatment Errors

Claims may involve:

• operating on the wrong site;
• damage to organs, nerves or blood vessels;
• retained surgical instruments;
• anaesthetic errors;
• failure to manage bleeding;
• avoidable infection;
• failure to recognise complications;
• incorrect technique; or
• inadequate follow-up care.

Some complications are recognised risks and may occur without negligence. Expert evidence is usually needed to distinguish an unavoidable complication from substandard treatment.

Birth and Maternity Injuries

Maternity claims may concern injury to the mother or child arising during pregnancy, labour, delivery or neonatal care.

Possible issues include:

• failure to identify fetal distress;
• delay in performing a caesarean section;
• mismanagement of pre-eclampsia;
• failure to diagnose infection;
• incorrect use of forceps or ventouse;
• failure to manage shoulder dystocia;
• maternal haemorrhage;
• serious perineal injury;
• failure to monitor a newborn; or
• brain injury caused by oxygen deprivation.

Serious birth injury claims can require evidence from several medical disciplines and detailed assessment of lifelong care, accommodation, therapy, equipment and financial needs.

The Duty of Candour

Health and social care providers have duties to be open and transparent when things go wrong.

Where the statutory duty of candour applies, the provider may be required to:

• tell the patient or appropriate representative what happened;
• provide a truthful account of the known facts;
• apologise;
• explain what further investigation will take place;
• provide reasonable support;
• follow up in writing; and
• provide updates about the investigation.

An apology is not, by itself, an admission of legal liability.

Making an NHS Complaint

A complaint may help obtain:

• an explanation;
• an apology;
• details of an investigation;
• information about changes made;
• correction of records;
• further treatment or review; and
• acknowledgment of service failures.

A complaint is separate from a clinical negligence claim. The complaints process does not normally award compensation for personal injury and does not stop the legal limitation period.

Complaint Time Limit

An NHS complaint should normally be made within 12 months of:

• the incident; or
• the date the complainant first became aware of the matter.

A late complaint may still be investigated where there is a good reason for the delay and a fair investigation remains possible.

Where to Complain

Depending on the service, a complaint may be made to:

• the hospital trust;
• the GP practice;
• the dentist or other provider;
• the relevant commissioner; or
• another body responsible for the service.

Patient Advice and Liaison Services may help resolve hospital concerns informally. At the same time, independent NHS complaints advocacy may help with a formal complaint.

The Ombudsman

If the NHS complaints process does not resolve the matter, the complaint may be referred to the Parliamentary and Health Service Ombudsman.

The Ombudsman can investigate service failure and maladministration but does not replace a clinical negligence court claim.

Clinical Negligence Time Limits

A clinical negligence claim in England and Wales must normally be started in court within three years of:

• the negligent treatment; or
• the claimant's date of knowledge, if later.

The date of knowledge is broadly when the claimant first knew, or could reasonably have been expected to know, that they had suffered a significant injury that was attributable to the treatment in question.

The three-year period is the deadline for issuing court proceedings, not merely contacting a solicitor or sending a complaint.

The court has limited discretion to allow some claims to proceed out of time, but this should never be relied upon.

Children

Time does not normally run against a child until their 18th birthday.

They will generally have until their 21st birthday to issue proceedings, although a responsible adult can bring a claim on their behalf at any time while they are under 18.

Adults Lacking Mental Capacity

Where a person lacks capacity to conduct the litigation, the limitation period may be suspended while that disability continues.

The legal test is not simply whether the person has a mental health condition or learning disability. It concerns their capacity to manage the particular legal proceedings.

If capacity is later regained, the limitation period may begin to run.

Claims Following Death

Claims involving a death may be brought by the deceased person's estate or qualifying dependants.

Different limitation periods may apply, typically involving the date of death or the relevant person's later date of knowledge.

Urgent advice should be sought, as probate, inquests, and dependency claims can affect the procedure.

Do Not Wait for a Complaint to Finish

A patient should not allow the limitation period to expire while waiting for:

• a complaint response;
• an internal investigation;
• an inquest;
• a professional regulator;
• disciplinary proceedings; or
• further treatment.

A solicitor may need to seek an agreement extending time or issue protective court proceedings.

What to Do After Suspected Negligence

Useful initial steps include:

• seeking any urgent medical treatment required;
• writing a chronology of events;
• recording the names of those involved;
• keeping appointment letters and correspondence;
• retaining photographs and recordings lawfully obtained;
• keeping receipts and evidence of financial loss;
• recording care and assistance provided by relatives;
• requesting medical records where appropriate;
• using the complaints procedure if helpful; and
• contacting a specialist solicitor promptly.

Records should be factual and made as soon as possible while events remain clear.

Medical Records

A solicitor will normally obtain relevant medical records, which may include:

• GP notes;
• hospital records;
• test results;
• scans and imaging;
• prescription records;
• operation notes;
• consent documents;
• nursing and midwifery records;
• ambulance records;
• incident reports; and
• complaint correspondence.

Records may not tell the entire story and must usually be considered alongside witness evidence and independent expert opinion.

Independent Medical Experts

Clinical negligence claims normally require evidence from an independent expert practising in the appropriate field.

The expert may consider:

• whether the treatment fell below a reasonable standard;
• whether the breach caused injury;
• the claimant's current condition;
• future prognosis;
• treatment and rehabilitation needs; and
• the effect on work and daily life.

More than one expert may be needed in complex cases.

A solicitor may decide not to continue a claim where supportive independent evidence cannot be obtained, even if the patient received poor service or experienced a serious outcome.

The Pre-Action Process

Clinical negligence claims are normally conducted under the Pre-Action Protocol for the Resolution of Clinical Disputes.

The process may include:

• obtaining records;
• early notification of the claim;
• independent expert investigation;
• a detailed letter of claim;
• a response from the defendant;
• disclosure of relevant documents;
• consideration of rehabilitation;
• settlement discussions; and
• alternative dispute resolution.

The protocol encourages early exchange of information and settlement where possible, while allowing the parties to identify the issues genuinely in dispute.

Will the Claim Go to Court?

Many claims conclude without a contested trial, but settlement is not guaranteed.

A claim may settle:

• before court proceedings;
• after proceedings are issued;
• following an admission;
• through negotiation;
• at mediation; or
• shortly before trial.

Proceedings may be necessary where liability, causation, or the value of the claim remains in dispute.

Serious claims involving children or other protected parties require court approval, even when the parties agree to a settlement.

Compensation

Compensation is intended, so far as money can, to place the claimant in the position they would have been in without the negligence.

It is not intended to punish the healthcare provider.

General Damages

General damages may compensate for:

• pain and suffering;
• loss of amenity;
• physical disability;
• psychiatric injury; and
• reduced quality of life.

Financial Losses

A claim may also include:

• past and future loss of earnings;
• medical treatment;
• care and assistance;
• therapy and rehabilitation;
• equipment;
• adapted accommodation;
• travel expenses;
• prosthetics;
• case management;
• pension loss;
• education or support costs; and
• other reasonable expenses caused by the injury.

The claimant must take reasonable steps to reduce avoidable loss and should retain evidence of expenditure.

Interim Payments

An interim payment may be available before final settlement where liability has been admitted, or the court is satisfied that the required legal test is met.

Interim payments may help fund rehabilitation, care, accommodation or immediate financial needs.

Periodical Payments

In serious cases, part of the compensation may be paid through regular index-linked periodical payments rather than as a single lump sum.

This can provide long-term funding for care and other recurring needs.

Funding a Clinical Negligence Claim

Possible funding arrangements include:

• a conditional fee agreement;
• legal expenses insurance;
• trade union funding;
• private payment;
• legal aid in limited cases; or
• another specialist funding arrangement.

Conditional Fee Agreements

A conditional fee agreement is commonly described as a no-win, no-fee agreement.

The client should understand:

• what happens if the claim succeeds;
• the success fee;
• what deductions may be made from compensation;
• responsibility for medical expert and court fees;
• whether after-the-event insurance is recommended;
• what happens if the claim is discontinued;
• what happens if advice is not followed; and
• which costs remain payable if the claim fails.

"No win, no fe"” does not mean that every conceivable cost is automatically covered in every circumstance.

Legal Expenses Insurance

Cover may be included with:

• home insurance;
• motor insurance;
• travel insurance;
• professional insurance;
• bank accounts; or
• trade union membership.

Policies should be checked promptly, as notification deadlines and panel-solicitor conditions may apply.

Legal Aid

Legal aid for clinical negligence is very limited.

It may be available for certain claims involving a child who suffered a serious neurological injury during pregnancy, birth or the early postnatal period, subject to the statutory requirements and financial eligibility.

Exceptional case funding may occasionally be considered in other circumstances.

Claims on Behalf of Children

A child cannot conduct litigation personally. A responsible adult, known as a litigation friend, may bring the claim on the child's behalf.

The litigation friend must act fairly and in the child's best interests.

Any settlement must normally be approved by the court. Compensation may then be:

• held by the court;
• placed in an approved investment arrangement;
• managed through a personal injury trust; or
• managed by a Court of Protection deputy where appropriate.

Claims for Adults Lacking Capacity

An adult unable to conduct proceedings may also require a litigation friend.

Where substantial compensation is awarded, the Court of Protection may appoint a deputy to manage the funds.

The court must approve any settlement involving a protected party.

Claims Following a Death

Where negligent treatment caused or contributed to death, claims may include:

• a claim on behalf of the estate;
• funeral expenses;
• financial dependency;
• loss of services;
• a statutory bereavement award where the legal conditions are met; and
• other losses recoverable under fatal accident legislation.

The person entitled to bring the claim may be the personal representative or, in some circumstances, qualifying dependants.

An inquest may investigate how the person died, but it does not ordinarily determine civil compensation.

Choosing a Clinical Negligence Solicitor

Clinical negligence is a specialist area requiring medical evidence, detailed loss calculations and knowledge of complex court procedure.

When choosing a solicitor, consider:

• their experience with the relevant injury;
• who will handle the case;
• their access to appropriate medical experts;
• funding arrangements;
• likely deductions from compensation;
• insurance arrangements;
• communication and reporting;
• experience with rehabilitation and interim payments; and
• accreditations or recognised specialist memberships.

The Law Society operates a Clinical Negligence Accreditation Scheme. Accreditation can provide evidence of relevant experience, but absence from the scheme does not necessarily mean that a solicitor is unsuitable.

Other recognised specialist organisations include the Association of Personal Injury Lawyers and Action against Medical Accidents.

Questions to Ask a Solicitor

Useful questions include:

• Have you handled similar claims?
• Who will have day-to-day conduct of the case?
• How will the claim be funded?
• What could be deducted from compensation?
• Who pays for expert reports?
• What insurance is required?
• What happens if expert evidence is not supportive?
• What costs might arise if the claim fails?
• How will rehabilitation needs be addressed?
• How often will I receive updates?
• What is the likely limitation deadline?
• Will any settlement require court approval?

How a Clinical Negligence Solicitor Can Help

A specialist solicitor may assist with:

• assessing the initial merits of the claim;
• checking limitation;
• identifying the correct defendant;
• obtaining medical records;
• instructing independent experts;
• investigating breach of duty and causation;
• preparing a letter of claim;
• dealing with NHS Resolution or private insurers;
• arranging rehabilitation;
• obtaining interim payments;
• calculating compensation;
• negotiating settlement;
• issuing and conducting court proceedings;
• representing children and protected parties;
• claims following death; and
• court approval of settlements.

Finding a Clinical Negligence Solicitor

Clinical negligence claims require evidence that treatment fell below the acceptable standard and that this caused avoidable injury. Poor service, an apology or a medical mistake will not necessarily establish both elements.

Strict time limits apply. A complaint, investigation or inquest does not normally stop the limitation period, so advice should be obtained promptly.

Use the search facility at the top of this page to find a solicitor experienced in clinical negligence and medical injury claims.

This guide provides general information about clinical negligence in England and Wales. It does not constitute legal or medical advice and should not replace advice about an individual case.