Was My Medical
Treatment Negligent

Was My Medical Treatment Negligent

Judging whether your medical treatment was negligent can sometimes be difficult. Often patients are told that treatment is a journey and that they should expect bumps in the road. But this does not protect medical professionals who fail to provide a reasonable level of care expected of a clinician in their field.

To succeed in a medical/clinical negligence claim you must prove all three elements of the following legal test:

• That the treating clinician, doctor, hospital or treatment provided owed you a duty of care.
• That there was a breach of this duty of care. You must prove that, by act or omission, the medical treatment fell below a reasonable standard when judged by a responsible body of medical opinion in that field of medicine.
• This breach of duty of care has, on the balance or probabilities (over 50%), caused or materially contributed to additional identifiable injury & loss. This is known as the legal principle of ‘causation’.

The treatment provider will have a defence if they can show that they acted in accordance with accepted practice in that field at the time of treatment, even if other clinicians may have done things differently.

We cannot judge clinicians with the benefit of hindsight or apply unreasonably high ‘gold’ standards on them. The legal test is based on reasonable standard across the UK at the time the treatment was carried out.

Damages are not awarded in the UK to punish a Defendant for negligent treatment. They are awarded based on additional injuries suffered in consequence of the negligent treatment. If the negligence has not made a difference to the outcome, then the claim will not succeed.

 Negligent v Non- Negligent Treatment

The legal test that needs to be satisfied to prove additional injury is stringent and you are largely dependent on the opinion of independent medical experts in the relevant medical field to bring a clinical/medical negligence claim.

A distinction must be made between treatment that was poor and can be criticized and that which fell below a reasonable standard as judged by a responsible body of medication practitioners to render it a breach of duty of care (negligent) & resulting in injury.

For example, a patient may have been spoken to poorly by a member of hospital staff, hygiene levels inadequate, there may have been poor communication regarding treatment plans or a prolonged wait for medical tests or treatment.

The NHS is under great pressure and waiting times for treatment are often prolonged across the UK. This does not make it right. However, unless you have suffered a diagnosed injury or detrimental outcome because of delayed treatment of a serious condition, it is unlikely that this will constitute a breach of duty which has been causative of additional injury, for which you can claim damages.

As clinical negligence solicitors we cannot get involved in arranging active treatment or a diagnosis for you. We can only assess whether you have already received negligent treatment, causing injury, after the diagnosis has been made.

Instances of poor, distressing or delayed treatment may initially form the basis of a complaint against your treating doctor, hospital or clinic.

Hospital Trusts offer a Pals & Liaison Service (PALS), whereby complaints are fully investigated with the staff involved in your treatment. You may be offered an apology and assurances regarding your treatment going forward. Changes may be made to protocols for the future.

Sometimes failings are identified that may have resulted in additional identifiable injury, and which can then assist in pursuing a clinical negligence claim. Our experts are happy to consider any complaint response to advise on whether this may support a claim in clinical/medical negligence.

Known Risks

Patients usually sign a consent form before embarking on surgery or a procedure which lists all the intended benefits and known risks and complications. Common examples include:

• Reaction to Anesthesia
• Respiratory issues
• Bleeding
• Damage to surrounding organs (bladder, bowel, blood vessels etc)
• Conversion from keyhole to full abdominal procedure
• Nerve Damage
• Post operative DVT
• Infection
• Wound breakdown
• Scarring and adhesions
• Chronic pain
• Requirement for further surgery

Specific procedures will have their own specific known risks and complications and should be listed in the Consent Form.

Patients should be properly informed of the comparative risks and benefits of the intended procedure, against other treatment options.

If you choose to go ahead and agree to the known risks and complications of a procedure, and that complication occurs, it may be much more difficult to prove that this occurred due to negligent treatment.

You will need to prove that the damage was caused by substandard surgical technique, over and above a known risk of the surgery, to which you consented. This is usually only possible if there is some latter evidence of poor surgical technique, for example if you seek a second opinion from another surgeon due to the post-surgical complications.

If you suffer a known complication of surgery there is a duty on your surgeon to consider your post-surgical symptoms and provide close management. If you cannot prove that the complication itself was due to negligent treatment, there may still be an actionable claim for delaying a diagnosis and treatment of that complication, so long as it has caused additional injury.

Consent for Treatment 

A claim can be based on the failure to obtain consent (or informed consent) before carrying out medical treatment. It is a fundamental principle that a patient should be informed of the nature of the proposed treatment and warned of any inherent risks and complications. Patients should be informed of alternative, less invasive treatment methods together with their comparative risks and benefits before they can make an informed decision to proceed.

Recent case law has conferred greater rights on patients to be armed with all relevant information regarding an intended procedure before they can make a proper and informed decision to proceed.

In the case of Montgomery vs Lanarkshire Health Board 2015 the Claimant was born with cerebral palsy because of shoulder dystocia during birth. The Claimant’s mother was small in stature, was diabetic and her baby was predicted to have a large birth weight. She had raised concerns that her baby might be too big to be delivered vaginally.

Evidence shows that there is 9-10% risk of dystocia where a diabetic woman gives birth naturally. Mrs Montgomery was not warned of this risk or informed of the possibility of an elective caesarean section to significantly reduce this risk. Her doctors effectively made the decision regarding the appropriate mode of delivery for Mrs Montgomery for her.

The judge found that there was a failure to inform the Claimant of the increased risk of shoulder dystocia in her case and offer an elective caesarean section as an alternative delivery option. Had this occurred, her son would not have become lodged in the birth canal and suffered a lack of oxygen to the brain.

The Court in the Montgomery case found that doctors must provide information about all material risks to patients i.e. any risk to which a reasonable person in the patient's position would attach significance.

The Claimant received over £5 million in compensation for avoidable brain injury.

A claim for lack of informed consent will only succeed if you can show that, on the balance of probabilities, you would not have consented to the treatment had proper advice been given and therefore the resulting injury would have been avoided. This is more difficult in circumstances whereby the operation was crucial, unavoidable due to the nature of the health condition, or an emergency.

To succeed in a claim for lack of informed consent, you must prove that:

• Advice was given
• This advice was below accepted medical practice, in that the doctor of clinician failed to provide accepted information regarding all material risks of the procedure, alternative treatment options and the comparative risks and benefits.
• Had the correct advice been given, on the balance of probabilities, you would not have consented to that treatment, either completely avoiding the injury that occurred or that the adverse outcome would have been less severe.

How long do I have to claim?

Time limits are set by law (the Limitation Act 1980) to determine how long a Claimant has to make a claim via the Courts.

General Rule

The general rule is that Court proceedings for damages for personal injury must be issued (registered at the Court) within three years of the negligent event. Failure to do so may result in your losing your right to claim.

However, the usual three-year limitation period would not begin to run until you had sufficient knowledge (the ‘date of knowledge’ which may be actual or implied knowledge) of certain facts, namely that:

1. The injury was significant
2. The injury was attributable in whole or in part to the alleged negligent act
3. The identity of the negligent Defendant

The ‘date of knowledge’ is particularly significant in Clinical Negligence cases. Often a patient may not be aware that they have potentially received negligent treatment until they later receive a correct diagnosis, or an indication from another clinician that the previous treatment was substandard. This may occur years after the index treatment occurred, and the primary three-year limitation period has passed.

For example, a patient may have been informed that a scan result was ‘normal’ four years ago. This is outside the primary three- year limitation period. However, the patient was only informed three months ago that the scan was incorrectly reported by the radiographer. This has led to a delay in diagnosis, causing additional injury.

It is arguable in that case that the limitation period does not start to run until the patient was informed of the incorrect diagnosis three months ago and was aware of a potential clinical negligence claim against the Defendant.

Claims can only be pursued if the Claimant’s date of knowledge of a potential claim, causing injury, was within the last three years.

Other Considerations

1. If the Claimant is a child, the three-year time limit does not commence until the age of 18 and so would not expire until the child's 21st birthday.
2. If the Claimant is a 'Patient' (as defined in the Mental Health Act) then the time limit does not run at all.
3. If the Claimant has died within the initial three-year period, then a new three- year period commences from the date of death. In those circumstances the claim can be continued on behalf of the Estate by the Personal Representative.
4. If the limitation period has expired then it may still be possible to pursue your claim by obtaining the Defendants’ agreement, or by applying to the Court to exercise its discretion pursuant to Section 33 of the Act in allowing the claim to be brought beyond the usual time limits.

How do I know if I have a valid claim?