Can I sue for Medical Malpractice?

What is Medical Malpractice?

Many people undergo medical procedures and receive treatment on a daily basis which results in an excellent outcome. However, sometimes things do go wrong and medical malpractice (clinical negligence) occurs when an individual receives treatment below an acceptable standard and this leads to the individual becoming injured or ill or to a worsening of their condition. If you or a loved one has been injured as a result of medical malpractice, you may be able to bring a claim for compensation.

In order to understand is you can make a successful claim or if you can sue for medical malpractice, and have a reasonable prospects of success, there are two separate legal tests that must be proved:

  • breach of duty and
  • causation.

To establish breach of duty, your solicitor will need to prove that the standard of care provided by your treating doctor(s) fell below an acceptable level. This is a strict test. You and your solicitor must show that no responsible body of practitioners would have treated you in the same way. So, even if a minority body of practitioners would have acted the same in the circumstances, a claim will fail.

Your solicitor will also need to prove causation, i.e. that your condition and prognosis has been detrimentally affected by substandard treatment. They must show that you have suffered symptoms over and above those you would have suffered anyway, due to your underlying condition.

Causation is proven on the “balance of probabilities”, which means 51% or more likely.

Can I bring a Claim?

If you’ve been injured due to medical malpractice, you may be able to bring a claim. You could also bring a claim for compensation if you’re the next of kin of someone who has died as a result of medical malpractice or on behalf of someone who can’t take legal action themselves because they don’t have capacity.

Time limits are vitally important in claims of this nature. The law provides that a Claimant has a three year window in which to bring a claim for medical malpractice / clinical negligence. This three-year period starts to run from the date of the relevant treatment, or within three-years of your “date of knowledge”.

What does bringing a Claim for Medical Malpractice involve?

Medical malpractice is a very specific area of law and it is important to ensure that you receive advice from a solicitor who has undergone specialist training and has the relevant experience.

The majority of medical malpractice / clinical negligence cases progress in this way. Your solicitor will:

  1. Obtain a full copy set of your medical records (i.e. GP and hospitals attended)
  2. Obtain a witness statement from you, setting out details of your condition, treatment and concerns
  3. Instruct an independent expert(s) to review your medical records and prepare a report addressing breach of duty and/or causation
  4. If the expert evidence is supportive, a Letter of Claim will be sent to the Defendant GP/ hospital etc.
  5. The Defendant will have 4 months to investigate the allegations raised and respond, indicating whether liability is admitted or denied.
  6. If liability is admitted, evidence is then obtained to quantify the claim and settlement negotiations follow.
  7. If liability is denied, it may be necessary to embark on Court proceedings.

How much will it cost to bring a claim?

In the absence of any existing insurance, your solicitor will consider acting for you under a Conditional Fee Agreement (commonly referred to as a “no win, no fee”). A risk assessment will be undertaken and provided there are reasonable prospects of success we offer No Win No Fee Agreements.

If you or anyone you know has suffered from medical malpractice and are considering making a claim, please contact one of our team at one of our four Davies and Partners Solicitors offices in Birmingham, Bristol, Gloucester and London, and speak to one of our medical negligence specialist Solicitors for a free initial consultation.

We will seek to advise you as to whether or not you have a valid claim for compensation and, if so, talk you through the process of making a claim and answer any questions you may have.

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