Medical Negligence - Do I Need A Specialist?

When a medical procedure or treatment goes wrong, the results can be physically, financially and emotionally destructive. Many people will consider whether to sue the medical practitioner or institution that performed the treatment. At this point, and possibly just when they feel least able to, patients are faced with another decision; how do I select a lawyer?

There is no shortage of legal professionals in the UK: small high street law firms, enormous multinational partnerships, general claims handlers, and directly instructed barristers are just some of the options available. How to choose between them all?

Two factors should help you decide - expertise and trust.

If a treatment or procedure has gone wrong in some way, it is possible that the medical practitioner concerned has performed their job negligently. This means that because of the way in which the treatment was carried out, the patient's care did not meet the standard generally expected. Medical negligence is just one of many types of negligence, and all types of negligence are similar. Courts apply certain tests that are common to all of them. Medical negligence, however, is different in a number of ways.

First, medical practitioners are professionals, and courts apply tougher tests in cases concerning professional negligence. Second, medical practice is a highly specialised profession. Doctors work within a particular specialist field, acquiring and applying knowledge honed over decades. These two factors mean that when deciding what kind of lawyer to instruct, patients should ask themselves; "Does my lawyer have experience in cases of professional negligence, and do they understand this particular area of medical practice?"

Remember, doctors and other medical practitioners will probably be covered by professional indemnity insurance, and the institution they work for will be similarly insured, so the amounts that they will be able to spend on lawyers will be significant. It is also highly likely that their own lawyers will have detailed understanding and experience of their area of medicine. Such lawyers may even have been doctors themselves once. Patients should ask themselves, "Would a doctor use this lawyer to defend themselves?" If the answer is yes, it's likely you've found the right lawyer.

Finally, one last thing is vitally important when instructing someone in cases of this type. Trust. When medical treatment fails to come up to the expected standards it can be an emotionally draining and traumatic experience. Though it's incredibly useful to have someone on your side with specialist knowledge, it's also vital that you trust that they understand how the negligence has affected your life.

Look for someone who inspires your trust and who has specialist knowledge, and you will improve your chances of obtaining a favourable outcome.

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The Cost of Medical Negligence to the NHS

Since the Bolam v Friern Hospital Management Committee tort (civil) law case in 1957 set the basic legal precedent for medical negligence cases in the UK the NHS has had to abide by the requirement to provide an appropriate standard of reasonable care. The Bolam test expects standards which must be in accordance with a responsible body of opinion, even if others differ in opinion.

The Bolam test is one part of the process of deciding if there is basis to a medical negligence claim. The first step is that there is a duty of care between the doctor and the patient. This duty of care is now taken for granted in English law. The second test is one that must show that the duty of care has been broken and this is where the Bolam test is used. The third test must show that there is a causal link between the injury and the breach and the forth test must show that the harm was not too remote.

The Bolam judgement stated that if a doctor reaches the standard of a responsible body of medical opinion, he is not negligent. If the doctor has acted in accordance with best practice at the time then they cannot be found to have acted in a negligent way. If an NHS Trust fails to meet these requirements then it leaves itself open to being sued for medical malpractice.

The National Audit office has recently issued a warning that the National Health Service in England is facing a legal bill of up to £4.4 billion for medical and clinical negligence cases. The cost of legal pay outs by the NHS has risen by half a billion pounds in the last year. The NHS Litigation Authority deals on average with about 20,000 claims a year. On average cases are settled within 18 months.

However the figure can be misleading as it purely an estimate based on the outstanding claims against the NHS. Not all of these claims are likely to be successful and very few will pay out at the top level of the claim. Roughly 40% of claims are settled out of court.

The last set of accounts that show the real pay out for the clinical negligence claim against the NHS are from 2007-2008. The total paid out was £550,000,000 or which £384,000,000 was the compensation with the rest made up of defence and claimant legal costs. This total is under 1% of the total NHS budget. Treating patients who have contracted infections once in hospital is almost twice the level of the costs of legal claims against the NHS. The highest level of medical negligence claims in 2010 were for the following areas, surgery 39% of all specialty claims, obstetrics & gynaecology 20% and medicine 17.8%.

Although the totals are a small percentage of the overall budget there is still concern that the figures are far too high and that lessons are not being learnt from previous cases. The government has also removed legal aid for clinical negligence cases and is looking to restrict and reform the fees received by solicitors for no win no fee work. These two reforms could dramatically reduce the number of clinical and medical negligence cases brought against the NHS in the future.

Tony Heywood ©

Visit the following sites for more information on The Bolam Test or for legal advice from Medical Negligence Solicitors

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Time Limits of a Professional Negligence Claim

Making a professional negligence claim is a big decision. If you are thinking of doing this then you need to be fairly certain that you have a good case as the process can often be complicated and drawn out.

This is why it is so important to seek the advice of specialist professional negligence lawyers if you are thinking about bringing a claim against a negligent professional.

There are several factors that you need to consider when making such a claim against a professional.

Negligence - not bad service

One of them, obviously, is that you need to know that you have a strong case against them. You can't sue someone for negligence simply because you weren't satisfied with their service; you need to have specific evidence of negligence. This means that something else you need to think about in a professional negligence claim is expert witnesses.

Expert witnesses

If your lawyers believe that you have a valid professional negligence claim to bring, it is highly likely that they will source at least one (and often more than one) expert witness in order to testify and back up your case. This expert will need to be someone independent who can be impartial and use their expertise to look at your case and deliver an opinion. If your case goes to court, it is highly likely that this expert will need to testify, so it is important that they have experience of taking part in such cases before.

Time limits

Another important issue that your professional negligence lawyers will need to be aware of is the time limits that are associated with bringing such a claim against a professional. There are a few standard time limits that need to be kept to, as well as a few exceptions to the rule. For instance, most cases need to be bought within 6 years of the negligence taking place. However, medical negligence or something else that caused you personal injury needs to be heard within 3 years.

There are also other exceptions, such as if the example of negligence was only discovered through due diligence a while after the event actually took place. There is also an exception made for people under the age of 18 years or people who are mentally disabled in some way. This is something your professional negligence lawyers will be able to tell you about in more detail; whatever type of case you have, though, it is important you take action as soon as you can in order to start the ball rolling in line with the time limits set out by the 1980 Limitation Act.

Thinking of making a professional negligence claim? Bonallack and Bishop are specialist professional negligence lawyers. Get in touch with them first for free initial phone advice.

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An Introduction to Negligence and the Duty of Care

Tort Law
The legal concepts of a Duty of Care and Negligence both fall within the area of law known as Tort Law - as distinct from criminal law. Whereas criminal law centres on the idea of a crime, tort law instead concerns what are known as 'wrongs' and so cases can be brought by a plaintiff or claimant against a defendant if they feel they have been 'wronged'. As the intention of tort law is to remedy these wrongs rather than punish an offender who is responsible for a crime, tort prosecutions are therefore usually brought by individuals against other individuals in private prosecutions rather than being brought by the state (as is the case with criminal law).

Tort law further differs from criminal law in the way that rulings enter into law. Criminal law is defined in legislature as passed by the government and law courts. Tort law on the other hand mostly relies on case law or common law; that is cases are decided based upon the precedents set by the previous rulings on similar legal scenarios (although there are some statutory torts that are defined in legislature).

There is in reality an overlap between tort law and criminal law and most criminal offences would also constitute a tort offence. For example, the crime of assault would also wrong the victim and result in a tort of assault. However, prosecution by the state of the criminal offence would usually take precedence and the tort would only be pursued by the plaintiff in the event of an unsuccessful criminal prosecution.

In terms of the resolutions that tort law achieves it differs from criminal law in that cases are usually remedied by the awarding of compensation to the claimant and in some cases injunctions against the defendant (or tortfeasor), rather than custodial sentences as a punitive gesture. The compensation awarded in such cases usually aims to restore a plaintiffs financial position to the state it would have been in if they hadn't been wronged by the tortfeasor, in a concept known as restitutio in integrum. Injunctions on the other hand, which are usually granted when there is a likelihood of the tort recurring, are usually defined in terms of actions that the tortfeasor is ordered to desist from, such as publicising information, but can sometimes include actions that they must carry out to prevent a further tortious act (e.g., clearing an offending rubbish pile).

Duty of Care
The definition of a duty of care is an obligation that exists between two parties to do no harm to each other, when harm could be anticipated, when they enter into a relationship or interaction that isn't already defined by a contract or familial ties (and therefore does not already have coverage in legislature). It is a similar concept to the idea of a social contract; an obligation of an individual in society to respect the rights of the other members of society. In simple terms there needs to be a case that one individual's actions will or can affect the other and that the effects are foreseeable to prove a duty of care.

There are many examples of the relationships which would constitute a duty of care in everyday scenarios, such as those between co-workers, fellow road users, a doctor and patient and even a manufacturer and consumer.

Where a relationship can be proven to exist between two parties the operation of law can be defined as applying to that relationship and therefore the duty of care that each party has towards the other can be established.

Whether relationships can be considered to legally instigate a duty of care has to be decided based upon legal precedents within the sphere of case law; that is, as is the case with tort law in general, there is usually no legislature that has been passed into law and judicial verdicts will be made in accordance with precedents set by courts.

Negligence
The area of law that negligence covers is when a wrong is not committed intentionally but results from careless actions - a failure to take the appropriate care when the individual is in a situation where it can be reasonably anticipated that their activities could potentially do harm to others. In other words negligence occurs when an individual breaches their duty of care. Negligence can affect not only the individual's physical and mental health but also their property and finances.

Negligence cases are usually broken down into what are known as elements, of which the plaintiff must establish each and all to have a valid negligence claim. The first of these are that the duty of care existed and that the duty was then in fact breached. Subsequent elements can concern whether harm resulted directly from this breach (and the cause wasn't too remote) and whether the appropriate corrective action is to award damages or compensation to the plaintiff or claimant.

It is important therefore that the risk of harm to others must be foreseeable at the time of the alleged negligence not just with the benefit of hindsight or knowledge of subsequent events.

Once a case of negligence has been established the amount of compensation that a plaintiff can be awarded will often be considered separately under liability law.

As with all legal issues, tort law is a very complex subject, and therefore if you think you may be impacted by it, it is always paramount to seek the best possible advice from qualified experts. For example, if you feel that you may have suffered from negligence while in the care of medical or clinical services you should seek guidance from trusted Medical Negligence Solicitors.

© Stuart Mitchell 2011

I'm a small business owner. If you are interested in finding out more about getting advice about medical negligence cases then visit Medical Negligence Solicitors.

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The Concept of Contributory Negligence in Car Accident Cases

In car accident matters, it is sometimes not clear who is at fault and who should pay compensation to whom. Even if it is very clear who is responsible for the accident, your car accident lawyer will advise you that there are instances when as a consequence of what is known as contributory negligence on your part, your rights to compensation may be reduced and your risk of liability may be increased.

The concept of contributory negligence recognizes that while one party may be primarily responsible for a car accident that happens, whether as a consequence of his negligence or recklessness, the parties who are victims in such a car accident may also have contributed to the outcome by a variety of means. The impact of establishing contributory negligence on the part of the other parties will mean that the original perpetrator's liability for the car accident may be reduced and your car accident lawyer will be able to guide you about the details of this.

An accident lawyer will usually advise you that contributory negligence in car accidents include things like non-functional tail lights, tail-gating, carelessness or recklessness on the part of the victim, and even not wearing seatbelts or crash helmets which may cause greater injury than would have been sustained if they had been worn.

When the courts evaluate the impact of contributory negligence, once it is confirmed that there is contributory negligence arising as a result of a specific issue, then the question becomes one of degree. The courts will contemplate this based on percentages for example, if the victim was not wearing a seatbelt, what percentage of this impacted on the injuries that were sustained. Contributory negligence percentages vary according to the facts of each individual case and are not cast in stone. It can be as low as 5 percent and as high as 100 percent!

At the end of the day, if the courts conclude that there is contributory negligence and they define the percentage, then your compensation as a victim will be reduced by that calculated percentage. This means that the courts reduce the percentage of liability that the main party who caused the accident will be responsible for and transfer that degree of liability to you.

While this is fairly common, what is uncertain is the degree of contributory negligence that may arise, and it is best to speak to your car accident lawyer in some details if you believe that this issue may be relevant to your car accident claim.

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