Post regarding making a personal injury claim for medical negligence by yourself and the challenges you should consider.
Being injured by or whilst in the care of a healthcare provider can be very unpleasant. You may be overcome with feelings of helplessness and anger. These are common and to be expected, especially if the injury is so severe that it causes a decrease in your quality of life. Although, financial remuneration will be far from the top of your concerns, it is something that should be considered to alleviate the distress caused.
Claiming for medical negligence (sometimes referred to as medical malpractice) is an option available to receive what some people call justice. If your claim is successful it will mean that the healthcare provider will be forced to pay out a sum of money deemed appropriate for the injuries incurred. These can be used for whatever purpose you wish, although there may be an amount set aside for improving your home to help with access and day to day living.
Proving Medical Negligence: What is involved?
Proving medical negligence to a court is essentially the same as proving Personal Injury. The specific area of law being Tort in England and Wales and Delict in Scotland. These are different names for the same thing, the Scottish legal system being slightly different than its neighbours in the south. However, the following principles are universal.
To prove medical negligence you must demonstrate on a balance of probabilities (meaning as a percentage your argument is more than 50% likely to be true), all of the following:
- A duty of care was owed to you by the defending party.
- There was:
- A breach of said duty.
- This breach caused or contributed to the claimed injury; essentially there was a negligent action.
- The negligent action caused the injury complained of.
Proving that a duty of care was owed and the facts you are asserting are usually the “easier” parts of a case to prove. In cases involving medical negligence the most difficult thing to prove is the negligence itself – or at least proving that the actions of the care giver can be deemed as being negligent.
What are the Difficulties?
The reason for this is a historic issue, in fact the Pearson Commission reported as far back as 1978 that whilst general claims for general negligence cases had an 86% success rate, only 30-40% of medical negligence cases resulted in an award of damages.
The reason so many cases are unsuccessful at proving that a doctor or other healthcare provider acted negligently is because of the courts unwillingness to interfere or challenge the medical profession. In fact, in order to successfully defend a case of medical negligence all that is required is for there to be body of other medical professionals who state that they would have taken the same action, even if this body is by far in the minority.
This is not to say that all is hopeless, rather it is better to be equipped with the difficulties that may lie ahead. On top of the legal principles being in the defending party’s favour, statistically people who represent themselves are much more likely to fail in their bid for damages.
Can these be Overcome?
In a word, yes. This is not to say that everyone will be successful in their claims but merely to underline that if you tackle the case in the right way, with the right preparation and knowledge you will be much better placed to succeed.
To begin with, ensure you have a detailed time-line of all relevant events with names of all persons included. Supplement this with a concise statement of all the facts surrounding your case; include your assertion of how you believe the injury resulted, names of all hospitals or doctors/care givers. You can then begin by addressing this to the NHS Litigation Authority (if the injury occurred in an NHS Hospital) or apply to the relevant court for your case to be heard.
If you are wanting to make a claim for medical negligence it is advisable to seek professional help from a solicitor, even if only for a consultation to discuss the merits of your claim. However, if you are going to be claiming by yourself you should seek out websites offering expert help to get you started and to learn as much as possible about the relevant law.