Medical negligence is when a healthcare professional causes harm to a patient through substandard care. It can range from a delayed diagnosis or misdiagnosis to a physical injury, from a surgical issue to an NHS-wide scandal.

Medical negligence claims are complex. They're perhaps the most complex of all types of personal injury claims. This is partly because the burden of proof is so heavy. Cases often take years to resolve.

Despite their complexity, medical negligence claims are essential to upholding standards in healthcare and holding unprofessional behaviour to account.

In this post, we look at what medical negligence is, what medical negligence claims consist of and how compensation is calculated.

What is the burden of proof?

To prove medical negligence, you have to provide four types of evidence known as the "four Ds". These are:

    • Duty

    • Dereliction

    • Direct cause

    • Damages

"Duty" refers to the duty of care that a healthcare professional owes to their patient. A claimant's solicitor has to establish that this duty of care existed and was abused – in other words, that there was a patient-to-professional or patient-to-provider relationship.

"Dereliction" is the failure to follow acceptable standards of care. For instance, if an unsanitised swab leads to an infection or a patient is prescribed inappropriate medication, they're the victim of professional dereliction.

For "direct cause" to be demonstrated, a solicitor has to show that the harm or injury the patient  suffered was directly caused by the action or inaction of the medical professional. This is also sometimes known as "causation".

Finally, "damages" have to be calculated. This is an estimation of the financial toll that medical negligence has taken on a patient. The calculation is made following compensation guidelines and has to be thoroughly evidenced.

All four Ds have to be proven for a claim to be successful. This hefty burden of proof is one reason why medical negligence claims are notoriously slow and complex – and why high-quality legal advice can be so crucial.

How much compensation is awarded?

As with all types of personal injury claims, the amount of compensation that a claimant can receive varies dramatically from case to case. For this reason, it's difficult for personal injury lawyers to give a clear picture even at the beginning of the claim.

The most critical factor in calculating compensation is how the injuries have affected you. This is divided into two types of claim: "general damages" and "special damages".

General damages are there to recover non-financial losses – essentially, the harm they've experienced. This covers pain, suffering, mental anguish and any other "loss of amenity" that's happened as a result of medical negligence.

By contrast, special damages compensate for monetary losses. This could include the cost of care, loss of earnings, travel expenses and treatment costs.

They can also cover future losses. In this case, the plaintiff is seeking to recover any financial loss they'll experience in the future, be it from employment, a pension fund or ongoing care needs.

The amount of special damages claimed will be unique to the claimant. There's no upper limit to the amount that can be claimed. (The highest in the UK to date was £37 million.)

If the claimant wins their case, they'll receive both types of damages. 

Is there a time limit for making a claim?

In England and Wales, the Limitation Act 1980 lays out the time limits for different types of legal claims. The "limitation period" for medical negligence cases is three years – regardless of the nature of the negligence.

The period begins on the date that the claimant became cognisant of the negligence. This could be the date on which the negligent action or inaction took place or the date on which the claimant first noticed symptoms resulting from it.

Limitations were introduced to protect defendants. As the act of negligence recedes into the past, the likelihood of court muddle increases. This could be evidence getting lost or destroyed, or something as simple as witnesses struggling to remember what happened.

The limitation period, then, is meant to encourage a clear exchange of perspectives between the two parties.

Are there exceptions?

If the claimant was under 18 when the negligence took place, then the period of limitation begins on the claimant's 18th birthday.

If the claimant does not have the mental capacity to manage their own affairs, the limitation period doesn't apply. This covers adults with learning disabilities, developmental disorders, dementia or brain damage.

Finally, if the claimant dies during the three-year period, the date of death marks the start of a new limitation period for the family of the deceased. And if the negligence is discovered after the victim's death, the family has three years to make a claim – starting from the date on which the negligence became known.

Why legal support is advisable

Whether brought against NHS England, NHS Wales or a private practitioner, medical negligence cases are complex. While three years may seem like ample time, there's a lot to be done. The claim must be completed and submitted to the court – something that requires a lot of evidence-gathering and coordination between the lawyer, the claimant and third parties.

This is why it can be advisable to seek legal advice as soon as medical negligence has been uncovered. It helps give the claimant the chance that they deserve to receive compensation for their losses.

At Milners Law, we have an expert team of friendly personal injury solicitors in North Yorkshire. We're members of The Association of Personal Injury Lawyers (APIL), a not-for-profit organisation – and all our members are accredited by The Law Society Personal Injury Panel.

You can expect expert support from lawyers with a proven track record in securing compensation, as well as a direct line to your lawyers. We don't use call centres and we aren't reading off a script.

Interested? Then please don't hesitate to contact us for a free, no-obligation consultation.