That will only happen if:

• the quality of care received is substandard; and
• this leads to injury, loss or damage

If these criteria are met, the civil law be invoked as part of a claim for clinical negligence. The remedy is compensation. This is not to punish anyone, but to make up, so far as money can, for the harm and losses suffered.

Why 'clinical'?

It used to be called medical negligence - and before that was regarded as just one type of personal injury claim. Elsewhere it is called malpractice litigation.

Over the years the special difficulties and challenges involved in making such claims have been increasingly recognised so that it is now a branch of legal practice in its own right.

It is now referred to as clinical negligence to make clear that claims against healthcare personnel for not exercising proper skill and care can cover:

• doctors
• dentists
• nurses
• midwives
• opticians
• pharmacists
• therapists

or indeed any other healthcare provider. 

It also covers claims against hospitals and other institutions whose facilities and administration provide the setting in which care is provided.  The NHS as well as private sector are governed by the same basic rules.

What are the rules?

A patient is entitled to be treated to a standard which a responsible body of people working in that particular field would regard as appropriate.  This means that the basic standard is set by the healthcare professional's peers and not by the law (the Bolam test).

So, for example, a GP is judged by the standards set by other GPs, an optician by the standards set by other opticians etc.  The standard to be applied is that which operated at the date when the treatment in question took place.

Only in rare cases, if the treatment was logically indefensible, will the law overrule the standard set by the healthcare profession in question (the Bolitho test).

It is also necessary to prove that this sub standard treatment caused injury, loss or damage.

The onus of proving all these things lies with the person bringing the clinical negligence claim. They, the claimant, have to prove that what they are saying is more likely than not to be true. In other words they have to prove their case on the 'balance of probabilities' - the civil standard of proof.

If proven, then money is assessed to compensate for the harm suffered and the losses and expenses that result.

The money awarded for injuries is based on what is awarded in other cases. Compensation for financial losses and expenses is calculated by reference to the actual cost of what is spent, lost and the cost of buying in professional help.

What sort of things result in compensation?

Each clinical negligence case has to be assessed separately - to take account of the effect on the life of this particular person.

Typically compensation can be awarded, both for the past and future, for things such as:

• physical injury, pain and suffering (including death)
• loss of enjoyment of particular aspects of life
• loss of earnings
• loss of a cherished occupation
• the cost of caring for the accident victim
• the cost of aids & appliances
• loss of future pension
• traveling costs
• replacing services the claimant can no longer perform for their family (gardening, housework, DIY etc)
• the cost of special accommodation needs
• private treatment and therapy fees

How to decide what to do

Deciding whether to persue a clinical negligence claim can be a difficult decision.  Other options may include:

• making healthcare complaints
• seeking a second clinical opinion
• waiting to see if any further recovery occurs
• writing to AvMA
• going to the local Citizens Advice Bureae

We recommend that you talk to one of our legal specialists to help you make the decision that is right for you. Talking to a lawyer does not mean you are bound to make a clinical negligence claim. It's just one step on the journey to finding out as much as you can, weighing up the options and then deciding what to do.

Contact us now - to gain the benefit of our experience - and obtain an objective assessment on where you stand and the options you should consider.

There are time limits applicable to most claims - do not delay - take advice on your own particular situation now.

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