Poor medical treatment in a hospital or other institution can lead to a negligence claim if it causes suffering, financial loss or both. However, compensation claims for clinical negligence are complex and highly specialised. They are completely different to negligence claims for personal injuries that are caused by other accidents.
Personal injury claims normally establish if someone was at fault and if injuries resulted, which is a relatively straightforward process. Clinical negligence claims, however, will require the evidence of medical experts who are qualified in a relevant speciality. The aim is to prove on a balance of probabilities that the medical treatment had several errors a competent doctor would not make and these errors caused or contributed to the injury suffered.
Because of the complex and specialised nature of clinical negligence law, the level of success in cases can be very variable. Figures show that some solicitors win more than 70% of their cases while others achieve only a 20% success rate, which shows the benefit of using an experienced and knowledgeable specialist.
Another consequence of the complexity of these cases is that most of the claims never progress beyond the initial assessment stage. This is because they are either thought to have little chance of succeeding or because the amount of compensation sought is too small to be worth pursuing. As a general rule, claims should have at least a 60% chance of success and have a claim value of a minimum of £10,000 to be considered viable. There are exceptions and smaller claims are sometimes pursued successfully.
If a decision is taken to proceed, terms and finance will be discussed with the solicitor before going further. The complexity and expense of clinical negligence claims means that the incidence of 'no win, no fee' cases is much less than for other personal injury claims.
Permission will be sought to obtain from the hospital a copy of the medical records, which will be passed to a medical expert for assessment. This expert will have the relevant speciality and will be used to giving evidence in clinical negligence cases. Providing the expert's report is positive, the solicitor will then assess the risks of the case, estimate the amount of possible compensation, consider how the claim will be funded and determine tactics and strategy.
Providing there are no obstructions, the case will then be taken forward, either against an NHS Trust or private hospital operator. Legal proceedings normally have to start within three years of the alleged offence and may well take some considerable time to reach a conclusion.
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