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Medical and clinical negligence claims

Friday, October 28, 2011 @ 09:10 AM
Author: John

I think most people would recognise that the vast majority of doctors and other health care professionals are extremely competent, well motivated and act with the very best of intentions. However, it is inevitable that occasionally things will go wrong, probably quite frequently, and often for very good reason. That usually does NOT mean that the doctor has been negligent.

The human body is tremendously complicated and no two patients are the same, so medicine is not always capable of producing the right outcome, no matter how well the care or treatment is given.

To a certain extent the law recognises that healthcare is a special case. Establishing a negligence case against a doctor, healthcare professional or health Body/Trust is extremely challenging. It is very different to a normal mainstream personal injury case.

In a normal accident claim it can often be straightforward to establish that, say, a driver drove negligently, or an employer failed in his or her duties to provide a safe system of work.  Clinical negligence claims are simply not like that.

Clinical negligence claims, often called medical negligence claims, have a more complicated path to take to succeed.

Put very simply, to succeed in a clinical negligence claim you must prove that,

1. There were serious mistakes made in your treatment, which no competent doctor in that field of medicine would have made and,

2. That those mistakes or errors caused, or at least contributed in part to causing the condition or injuries you are now suffering

You can see, particularly from the first point, that the law affords some significant protection to doctors and it is clear that a bad outcome for treatment does not automatically mean that the doctor has been negligent. The treatment must have been worryingly bad as judged against medical peers.

It is generally accepted from a public policy point of view that this qualified protection for doctors is right. Otherwise doctors might act defensively and refuse to offer risky or innovative treatment.

Where does this leave the individual concerned?

They are often left with an unexpected and distressing outcome from their treatment. This is often extremely upsetting and there can be a natural reaction to blame the doctor and healthcare team. Sometimes that might be justified, sometimes not.

Comprehensive formal complaints procedures exist and when someone has had a really bad experience or outcome invoking that is often the best step to take first. However, because of the complexity, both legal and medical, it is often best to see a lawyer even before considering or submitting a complaint. They might be able to help you to refine and express your complaint clearly.

Once you are contemplating actually starting a claim then you really ought to consult a lawyer. Most ought to see you for free, at least at first. We certainly do.

The lawyer can then listen to you, hear the details of your experience and consider your options with you. It is usually impossible to tell whether the claim will succeed at this early stage, but the lawyer will be able to explain the process.

Funding a clinical negligence claim can be tricky, but there are various options available and the lawyer ought to explain them to you. Do make sure that the first meeting is free though!

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