Proving Medical Negligence in Compensation Claims
By Stephen Moreau. Last Updated 28th April 2023. Welcome to our guide on proving medical negligence in a compensation claim. Medical professionals have a responsibility to provide all patients with a minimum standard of care. This is their duty of care towards patients.
How To Prove Harm Caused By Medical Negligence
Sometimes, the care they provide falls below this standard, meaning they have breached their duty of care. If this breach causes you harm or makes your condition worsen more than it would otherwise have, then you may be able to claim for the harm you were caused.
If this is the case, then you may be able to claim compensation for the harm caused to you. You could also claim back any financial losses or expenses that you have incurred.
Get In Touch With Our Team
Our expert team of advisers is always available to offer you the advice you need to start proving medical negligence. They can discuss your situation with you to gain more understanding of how to help. Furthermore, they can assess how much compensation you could receive. They could also connect you with a lawyer from our panel.
If you’d like to get in touch with our team of advisers, we suggest you:
- Call them on 020 3870 4868. Our advisers are available 24/7 to offer free legal advice.
- Fill in our online claims form. An adviser will get back to you at your earliest convenience.
- Chat with one of our advisers through our online chat pop-up box for an immediate response.
Services And Information
- What Is Medical Negligence?
- How To Prove A Medical Professional Owed You A Duty Of Care
- Proving This Duty Of Care Was Breached
- Proving Harm Was Caused By Medical Negligence
- Evidence That Could Prove Medical Negligence
- Medical Negligence Compensation Calculator
- The But For Test And Causation In Medical Negligence Claims
- The Material Causation Test
- The Egg Shell Rule
- Types Of Medical Negligence You Could Claim For
- How Long After Negligent Medical Care Could You Claim?
- I Suffered Harmful Medical Negligence, What Should I Do?
- Claim For Harmful Medical Negligence On A No Win No Fee Basis
- Similar And Related Guides
As we have already mentioned, medical negligence is when a healthcare professional provides you with substandard care, and your condition becomes worse, or you’re injured as a result. There are a number of different circumstances where medical negligence could occur, including during an operation, the administering of first aid and when making a diagnosis.
However, it’s important to note that not every instance of you coming to harm as a result of medical treatment will be an example of negligence. In some cases, your condition can worsen, or you can become injured when a doctor is delivering the right level of care. For example, you may have a condition that you seek a diagnosis for, but you’re presenting with symptoms that are very different to the ones that usually appear. It may be that your doctor could not be expected to diagnose you based on the evidence provided.
Similarly, you may be giving birth when the doctor attending the delivery notices that you’re suffering from heavy, uncontrollable bleeding. It could be that they need to perform an emergency hysterectomy on you to stop this and save your life. Although the doctor will have to make an incision and remove your uterus, it would be in accordance with their duty of care to do so.
There will usually not be a requirement for you to prove that a healthcare provider owed you a duty of care. This is because this duty of care is automatic; every healthcare provider owes each one of their patients a duty of care. But what does this mean?
- Keeping professional knowledge up-to-date
- Work in partnership with patients, treating them as individuals
- Never discriminating against patients or other healthcare providers
Similarly, the duty of candour outlines the responsibility that healthcare professionals have to communicate openly and honesty with patients and their families when something has gone wrong. This honesty must also extend to colleagues, employers and regulators.
When things go wrong, medical professionals should:
- Tell the patient (or their family) exactly what has gone wrong.
- Apologise to the patient (or their family).
- If possible, offer a way to make things right.
- Explain in detail to the patient (or their family) the short-term and long-term effects of what has gone wrong.
As we have already mentioned, not every instance of something going wrong in the course of medical treatment will be an example of negligence. For more information on proving that a breach of duty of care happened, please read on.
Proving that a duty of care was breached can be complex. After all, many of us do not have sufficient knowledge of the medical field to be able to tell whether or not the care provided was of the right standard. Furthermore, even if it is clear that negligent care was administered, it can be difficult to show that the negligence caused the injury and not the condition.
For example, a doctor could act negligently when treating a patient with sepsis. If the patient then dies, it can be difficult to prove that the negligence led to the death rather than the sepsis.
For this reason, courts will often administer something called the Bolam test in medical negligence cases. This is where a panel of the medical professional’s peers are asked whether or not the care provided was of an acceptable level. If they say that it was, then no negligence will have been considered to have occurred. If they say that the treatment provided fell outside of an acceptable standard, however, then this could be considered negligence.
In order to make a medical negligence claim, you need to show that harm was caused to you by the negligence. It is not enough that a doctor acted negligently; you need to show that you suffered as a result of their action or inaction.
You need to show that it is “more likely than not” that the medical negligence caused the harm you experienced. Often, a medical expert will need to testify that negligence on the part of the doctor led to the injuries.
To start proving medical negligence, you must provide evidence to support your claim. Some examples of evidence you could use are:
- Medical reports and assessments: Medical reports include all the information about the patient and their condition.
- Photos: Photos of any injuries that the patient has sustained can help prove the extent of the clinical negligence.
- Witness statements: This can be used as a reliable double of evidence as people can relay exactly what they saw happen. This proves that it’s not just you who witnessed the medical negligence, so witnesses can also back up your claim.
- Financial impact: Evidence of the financial impact the negligence has had on you, for example, bank statements, can be used. For example, you may have had to pay out of pocket to travel to more medical appointments because the negligence caused health complications.
Instead of using a medical negligence claims calculator, we have included the table below to illustrate how much your claim could be based. This table includes figures from the latest Judicial College Guidelines to show how much compensation some injuries could be valued.
This table below is for example purposes only, and compensation figures may vary depending on injury severity, circumstance, and treatment or recovery length.
|Post-Traumatic Stress Disorder||Severe||The individual can’t work or live the same as they did at pre-trauma level.||£59,860 to £100,670|
|Post-Traumatic Stress Disorder||Moderate||Person has mostly recovered and any effects leftover aren’t substantial.||£8,180 to £23,150|
|Bladder||Double Incontinence||Loss of natural bowel function and loss of urinary control and function.||Up to £184,200|
|Bladder||Serious Impairment||Significant impact on control with some incontinence and pain.||£63,980 to £79,930|
|Spleen||Loss of Spleen||Continuous risk of internal infection and disorders due to damaged immune system.||£20,800 to £26,290|
|Spleen||Damage to spleen||Little or no risk of infection and disorders.||£4,350 to £8,640|
|Hernia||Continuing pain||Limited ability to participate in physical activities, sport, or employment after repair.||£14,900 to £24,170|
|Hernia||Direct Inguinal Hernia||Some risk of recurrence after repair.||£7,010 to £9,110|
|Infertility||May have resulted from a failure to diagnose an ectopic pregnancy.||£43,010 to £102,100|
|Infertility||Caused by injury or disease, causing severe depression, anxiety, pain and scarring.||£114,900 to £170,280|
Special Damages For Medical Negligence Claims
The compensation brackets in the table above cover compensation for what’s known as general damages. These focus on the physical and mental impact medical negligence has had on your life. However, compensation settlements for successful medical negligence claims could also include special damages.
Special damages aim to compensate for financial losses that you have experienced due to medical neglgience. Examples of special damages that may be part of your compensation for medical negligence can include the following:
- Loss of earnings if you have required to take unpaid time off work.
- Travel expenses such as train tickets or taxi rides to medical appointments.
- Care costs.
- Medical expenses, such as paying for prescriptions.
You will need to provide evidence regarding these financial losses, such as payslips or invoices.
Contact our advisors today to discuss your potential medical negligence claim and receive free advice.
Proving causation in medical negligence cases means proving that the breach of duty of care directly resulted in injury or a worsening of your condition. For example, if a medical practitioner makes a misdiagnosis that a competent doctor would not make, but the condition does not get any worse than it would have if it’d been correctly diagnosed, then you may not be able to claim.
The ‘but for’ test is used to explore whether there’s causation or not. We can ask, ‘but for the negligent clinical treatment, would the claimant’s injuries have occurred?’. The answer to this question will illustrate whether or not negligence has caused the condition.
The claimant needs to prove this on “the balance of probabilities”. This means that there needs to be a more than 50% chance that the injury or condition was caused by negligent treatment.
If you’d like more advice about the ‘but for’ test and causation, you can contact our friendly team of advisers today for 24/7 free legal advice. They can discuss your situation and help determine whether causation is likely to be present.
The ‘but for’ test does have its downfalls. For example, it may be less useful in circumstances where there are multiple potential causes for the injury. Therefore, it can be difficult when proving medical negligence and proving there is causation. Even if the negligence did cause your injuries, it might be not easy to prove that.
If this is the case, a modified version of the ‘but for’ test should be applied. This is called the material causation test. This test determines if the negligence contributed to the injuries and if this contribution is material.
For the test to succeed in proving medical negligence and causation, it must illustrate that:
- The negligence directly contributed to the injuries rather than increased the risk of injury.
- There must be a material contribution. This means it must be more than negligible; the court will choose how they measure this.
- There can’t be a different definitive cause of the injuries. The material causation test can only be used when there are various causes of the injury, and one singular cause can’t be established.
The material causation test can support claimants in proving medical negligence if there are multiple possible factors contributing to their injuries. If you’d like to discuss this more in-depth, feel free to get in touch with our team advisers for a chat about your situation today.
The “Egg Shell Skull” rule is a principle in English tort law. It holds that when someone is making a claim for compensation for harm caused to them, it’s not a defence to claim that they are particularly frail and fragile. The name comes from an example of someone with an unusually thin skull; if they were injured as a result of negligence, their pre-existing condition would not negate them from claiming medical negligence compensation.
The eggshell rule applies to personal injury claims, including car accident claims and workplace accident claims. It also applies to medical negligence claims. If a medical professional breaches their duty of care towards you and you’re caused harm, it doesn’t matter if the harm you experienced was exacerbated by a pre-existing condition. You could still claim.
You can contact our team of advisers today for free legal advice about claiming medical negligence compensation, even when you suffer from a pre-existing condition. Provided you have a valid case, they could connect you with our professional panel of medical negligence lawyers to begin your claim.
There is a wide range of circumstances where you may be able to launch a claim for medical negligence. Many cases of medical negligence fall into one of the below categories.
- Misdiagnosis or missed diagnosis: Not every instance of medical negligence will result in a medical negligence claim. Sometimes, a doctor might do all they can to diagnose a condition but still misdiagnose you or miss your condition. But if a doctor administering the correct standard of care would have diagnosed the condition, leading to a better outcome for the patient, then you may be able to claim.
- Inappropriate treatment: If a doctor gives a patient treatment that a medical professional acting within the standard of the profession wouldn’t, they could cause the patient harm. This could result in a medical negligence claim.
- Not telling patients about risks: Doctors have a duty of care to warn patients of potential risks of medication, treatment, and procedures. If the patient finds out about these risks afterwards, they state that they wouldn’t have accepted the treatment if they knew beforehand, and they were injured by the treatment in a way that they should have been warned about, they may make a clinical negligence claim.
You can contact our team of advisers today to chat more about the types of medical negligence you could claim and how to go about proving medical negligence happened to you.
Generally, the medical negligence claims time limit is three years. That’s three years from the exact date you suffered your injuries or three years from when you discovered your injuries were caused by someone else’s negligence, which is called the “date of knowledge”. However, there are some exceptions to this limitation period:
- Child accident claims: If you’re below 18, the three-year time limit commences on your 18th birthday. If you’d like to begin your claim sooner, someone you trust can act as a litigation friend to pursue the claim on your behalf. While you’re under 18, the time limit is frozen.
- Incapacitated claims: If someone lacks the mental capacity to make a claim, the three-year time limit begins in the event that they recover. Otherwise, someone can become a litigation friend to claim on behalf of them.
You can get in touch with our team of friendly advisers today to receive free legal advice about proving medical negligence. Our advisers work round the clock to provide you with the information you need about making a claim.
If you’ve suffered harm as a result of medical negligence, you should seek medical care as soon as you can. This will ensure that you have the treatment you need for the harm caused to you. You’ll also then have medical records to show that you’ve sought treatment for the effect the negligent treatment had on you.
You should also collect evidence related to your claim. For instance, you may want to make a note of all the medical appointments you attended and what action was undertaken. This could go towards proving medical negligence occurred and caused you harm.
Next, you should gather evidence to prove that the injuries affect you financially. For example, you could provide payslips to prove you suffered a loss of earnings due to taking sick leave from work.
Finally, you can contact a medical negligence solicitor to work on your claim. We can help with this. Simply give us a call, and we may be able to connect you with a medical negligence lawyer from our panel.
Our panel of medical negligence lawyers is happy to discuss working on your medical negligence claim on a No Win No Fee basis. A No Win No Fee agreement is a contract between you and your lawyer stating the things they need to do before being paid.
You won’t be asked to pay your solicitor anything in order for them to start working on your claim. If your claim is unsuccessful, you don’t need to pay your solicitor’s fees. If your claim succeeds, your lawyer will take out a small, legally capped percentage of your compensation.
To learn more about proving medical negligence claims, you can contact our team of advisers by:
- Calling them on 020 3870 4868. An adviser will offer you free legal advice about your situation.
- Starting your claim online. One of our advisers will respond to you at whatever time best suits you.
- Chatting with our advisers via our live chat pop-up box for an immediate reply.