Overview
Doctor Negligence is really a sub-category of a Clinical Negligence claim but it involves making a claim against your Doctor or GP. Many people consider this to be rather more personal than a Clinical Negligence claim which may involve an operation by a Surgeon who was little known to the Client.
Although it is likely that a relationship with your GP may be more personal than a possible claim against a Surgeon, there is no reason why a Claimant should feel in any way embarrassed since it is most unlikely that a Claimant would have to meet with the GP in respect of the claim, except in the event that the claim were to be pursued all of the way to a Trial. Often nowadays claims can be settled out of Court.
Doctor Negligence cases are invariably complicated and no two claims are alike but before a claim can be considered there are three broad areas that a potential Claimant will have to establish:-
- The standard of care fell below what could reasonably have been expected.
- Injury, loss and damage occurred because the standard of care fell below what could reasonably have been expected.
- The Claim is brought within the Statutory Limitation Period, which is normally three years.
Time Limits
The normal time limit within which legal action must be taken is three years from the date when you knew or could reasonably have been expected to know that you have suffered injury, loss and damage following Negligence on the part of a Doctor.
In most cases the calculation of the three year period is straightforward but sometimes the person is not aware that a clinical procedure has caused injury until many months later. The Courts can take this into account in considering whether legal proceedings have been commenced in time.
Time does not run while a person is not mentally capable nor against a child who would be able to commence proceedings at any time up to their 21st birthday.
Standard of Care
Many thousands of operations and clinical treatments are carried out successfully every year and only a small minority fall into the bracket where the Court has to consider whether the standard of care fell below that which could reasonably have been expected. Understandably people often consider that if their particular clinical procedure or treatment has gone wrong then that must have been because they were not treated properly and with sufficient care. If it was considered by the Court that the treatment provided was in line with the views of a responsible body of medical opinion then the claim would fail, but if the treatment was below the standard that would be expected by a responsible body of medical opinion then, providing the other elements of the claim can be satisfactorily proved, a claim may be successful.
Did the Treatment cause the Injury?
Sometimes medical mistreatment can occur without causing a person injury, loss or damage. Perhaps the easiest way of explaining this is to give an example of a more everyday situation such as driving a car. If a driver “jumps” traffic lights at a cross roads but managed to avoid hitting anything or anyone then that would not give rise to any claim. However, if the same driver “jumped” the traffic lights and by doing so ran into another road user who had passed the traffic lights on green and was injured in the collision then it would be argued that the negligent driving caused the injury and a claim would arise.
When dealing with negligence by doctors a defence may arise if an injury would have occurred in any event, possibly caused by the illness of the person in the first instance.
When to Make a Claim
Although the usual time limit for making a claim is three years from the date of the negligent act it is sensible to seek advice quickly. A lot of evidence has to be gathered before a claim can be formulated. Medical records have to be gathered and scrutinised and a Specialist Medical Expert must be instructed to consider whether or not a claim can properly be made. When evidence is gathered, careful consideration must be given as to whether or not the case is sufficiently strong to present to a Court and at that point the medical attendant or medical body would be notified in accordance with a strict protocol procedure.
The complexities of claims against doctors often involve time consuming inquiries and gathering of the evidence and that is why it is important to consider action as soon as possible.
Paying for Advice and Representation in Court
Legal Aid may be available but Frearsons offer other methods of funding claims including “No Win, No Fee” and various insurance based schemes which do not usually involve the client in paying anything. We would be happy to discuss both your claim and the means of paying for representation with you at any point.
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