Clinical negligence claims arise where an individual suffers physical or psychiatric injury as a result of negligent treatment provided by a medical professional.
In order to establish a claim in negligence:-
1) There must be a situation which gives rise to a duty of care. This is not a problem in clinical negligence claims as medical professionals are considered to have a duty of care to their patients.
2) The treatment received by a medical professional must have fallen below the reasonable standard of care expected to be provided. This can be that the medical professional did something they ought not to have done or they failed to do something they ought to have done. The test is based on what a reasonable practitioner in that relevant felt would have done in the circumstances presented at the time and in effect is looking at whether the medical professional is at fault (legally referred to as breach of duty).
Examples of a breach of duty include but are not limited to:-
- Failure to diagnose
- A long delay in diagnosis
- Being prescribed the wrong medication
- Unacceptable delay in diagnosis
- Failure to refer a patient to a specialist doctor or to hospital
- Failure to monitor treatment
- Incorrectly prescribing the wrong medication
3) The injury sustained by the client must have been caused as a direct result of the actions or failures of the medical professional (legally referred to as causation).
Whilst the purpose of clinical negligence litigation is to place the victim in a position they were in, so far as it is possible to do so, prior to the incident occurring, it is often equally important to the victims of clinical negligence to receive answers as to what when wrong and why. Clinical negligence claims can often provide the answers as to what went wrong, however, they cannot always provide the victim with an explanation of why nor can they ensure that changes are made to the practices and procedures following.
Such issues can be addressed by complaining to the hospital. Complaints must be bought within 12 months of an incident. All hospitals will have a formal complaints procedure, which can usually be found on their website. If you have complaint to your hospital in light of poor medical treatment received and you are not happy with the response you can take your complaint to the Parliamentary Health Ombudsman who has the power to carry out an independent investigation.
The PHSO can then consider the complaint and ensure that where poor treatment has been received, an appropriate remedy can be put in place.
The complaints process is separate to that for bringing a claim for medical negligence and therefore the objective is to put things right in terms of the relevant hospital involved making an apology for the treatment or lack of treatment provided and to ensure that mistake are learned from and changes are made in order to prevent a similar incident taking place again.
The PHSO also reported following a survey, last week, that while 90% of those who took part thought complaints should be made following poor treatment, only one in three people do in fact make complaints. Some stating their reasons as being that they didn’t think a complaint would bring about change. However, the focus of the PHSO is to ensure that hospitals consider the complaints received and to ensure steps are taken to improve the service provided. It can therefore be said that both clinical negligence claims and complaints act as an important catalyst for change by providing feedback highlighting poor treatment, service and mistakes which can then be learned from leading to change and l improvement in both the service and treatment provided by the health service. The more feedback given, the more change can be made which inevitably leads to continual improvement.
Interesting read… highlighting the importance of taking a detailed and accurate liability statement at the outset of the claim – and getting it signed!
Originally posted on Civil Litigation Brief:
In Wake -v- Johnson  EWHC 276(QB) HH Judge Collender QC (Sitting as Judge of the High Court) conducted a critical analysis of the lay evidence and expert evidence when dismissing a clinical negligence claim against a GP. There are important lessons, particularly in relation to witness evidence in clinical negligence cases.
The case centred on what occurred in a consultation by a GP, it was alleged that the GP had been negligent in not referring the claimant to hospital. The trial, which was on liability alone, took 9 days. It was agreed that, if the parents’ account of what had occurred at the consultation was accepted the GP was negligent, with issues relating to causation to be determined later.
This case underlines the importance of witness evidence in clinical negligence cases.
- Evidence must be consistent.
- “Corroborative” evidence will be looked on with some scepticism if…
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Statistics provided by campaigners show that there has been significant increase in the uploading of sexual and explicit content of “Ex’s”, following the breakdown of a relationship in an act of revenge otherwise known as “Revenge Porn”.
As a result, campaigners are calling for a change in legislation such conduct to be recognised as “the intentional sexual humiliation of ex partners by posting intimate and naked photos/videos on-line”.
Civil law currently provides some by way of the recently amended Stalking and Harassment Act. However, such law requires victims to show that there has been more than one occasion of conduct before they can rely on the act to obtain an injunction. Some may argued t that such action is all “a little too late” as once such contact has been leaked it is near impossible to have the content removed unless on grounds of child protection or copyright law. In some cases the images will find themselves in the results of a simple Google search becoming engrained as part of the victim’s “cyber footprint”.
Whilst initial embarrassment and humilation is a somewhat foreseeable consequence, Revenge Porn can also have far reaching effects in terms of employment prospects, friendships and relationships. Therefore a change in the law to ensure that such conduct is also considered a criminal offence may provide a welcomed deterrent to bitter and malicious ex’s than the existing civil law remedies.
It may be argued that those who agree to provide their partners with sexual contact are naïve to think that the content will not be shared, however, would the same view be taken following the breakdown of a loving, committed and trusting long-term relationship of marriage. Is it clear that this is an issue that is likely to continue rising with the continued development of fingertip internet access.
Law Student, Heather Robertson has launched a campaign for the “Ban of Revenge Porn”. In order to generate political debate the petition requires 100,000 signatures. If you wish to support the move towards the ban please see the link below to sign the petition.
So is it naivety? Do you have sympathy? Would you do it? Have you done it? Should the law be changed?
For the full McLoughin judgment please visit: http://www.bailii.org/ew/cases/EWCA/Crim/2014/188.html
The Court of Appeal gave judgment yesterday on the somewhat controversial issue of the human rights of whole life offenders.
At the present time 52 offenders are serving whole life tariff in relation to some of the most heinous crimes. This is a small percentage of people considering that there are around 80,000 offenders in UK prisons.
The debate arose following the human rights case of Vinter in July 2013 in which the UK were found to be in breach of Article 3 of the European Convention of Human Rights (ECHR) which prohibits inhuman treatment or degrading treatment or punishment. The European Court of Justice (ECJ) held that in order for a life sentence to be compatible with ECHR there must both be a prospects of release and a possibility of review. It was suggested that such sentence review ought to take place after the offenders had served 25 years. On review it would be considered whether the offenders had reformed and whether they were no longer a danger to society.
The UK, however, maintained that the approach in England and Wales was in fact compatible with the ECHR as S30 of the Crime (Sentences) Act 1997 provides that “the secretary of state can at any time release and life prisoner on licence if they are satisfied that there are exceptional circumstances and that as a result such whole life sentence is no longer justifiable”. Therefore whilst there may not be a formal review stage at such those on a whole life sentence do have the possibility of being released.
Many will argue that imposing whole life sentences on the most dangerous of offenders merely creates further danger both to other inmates and prison employees as the “lifers” no longer have any further to lose and therefore there is no incentive to even attempt to reform. Other will argue that such offenders should not be given a second chance to reform when their actions have caused such significant harm and potentially there will always be a risk reoffending.
The Court of Appeal, did in fact find yesterday that the UK were not in breach of Article 3 ECHR and concluded that the courts in England and Wales can continue to hand out whole life sentences where appropriate. This, however, is unlikely to be the end of such debate.
Do you agree?
For some years there has been a debate over whether pre-marital agreements should have binding force.
Such agreements, commonly known as pre-nuptial agreements, are drawn up by the parties prior to a marriage with a view to setting out the financial settlement that ought to take place in the event of divorce.
Many will think pre-nups are legally binding. However, the traditional approach of the courts in England and Wales has been that they are not.
This approach was challenged in Radmancher v Granatino (2010) in which the court held the parties to their pre-marital agreement raising some question over the enforceability of pre-nups. However, the court also stated that the position was not the starting point but rather a fact that could be taken into account when considering financial settlement along with other considerations such as whether the circumstances of the parties had changed since making the agreement and the length of marriage.
There has been some debate in relation to whether such approach is correct as it prevents parties from choosing how to deal with their assets on the breakdown of marriage.
However, in a position where there has been a marriage of long duration, where the parties have since had children and one parent has left work to provide family care would it be fair to hold the finically weaker party to an agreement made prior to the marriage?
It now seems that clarification on the legal standing of pre-nups is on the horizon. The Law Commission have drafted The ‘Matrimonial Property, Needs and Agreements’ proposals, which will outline a new law ‘to consider the treatment of pre-nuptial, post-nuptial and separation agreements. The proposals suggest that parties should be held to the arrangements made under a pre-nup prior to their marriage.
Many may see this as a fair approach others may say the safeguard of having pre-nups considered rather than automatically binding is a just approach to dealing with family finances on breakdown.
What do you think? Should pre-nups be worth the paper they’re written on?
A report published by the Commons Public Accounts Committee has criticised the Department of Health once again. The report has highlighted that a national shortage of midwives is putting mothers and their newborns at risk. Perhaps, even more shocking, is the finding that neither the Department of Health and NHS England were clear as to who was responsible for ensuring that the NHS has enough midwives to meet demand.
There is currently a shortage of around 2300 midwives in the NHS. Whilst the NHS employed a further 1500 midwives last year, birth rates and staff turnaround have increased wards causing maternity wards to remain understaffed.
The report also found that rates of still births and deaths within seven days are still the highest in England against statistics for other UK nations and the numbers continue to rise.
With nearly £5billion being set aside for potential negligence claims, around £700, per birth it seems that the NHS are somewhat in a catch 22. It could be argued that such funds should be invested to improve the service provided, to ensure the staffing requirements are met and reduce the level of pressure in obstetric wards as this would hopefully reduce the chance of negligent errors taking place in the first instance.
However, on the other hand with such incidences on the increase and taking into account the long term financial need of children who are injured at birth it is important to ensure that such “contingency funds” can meet the levels of future financial provision required in terms of compensation.
Unfortunately it seems that there is no quick or easy solution and therefore the NHS are likely to remain in what seems to be a catch 22 situation for some time.
A lesson that one London Hospital has learnt this week is that mistakes can sometimes have catastrophic consequences.
On Monday, the High Court approved a settlement for Great Ormond Street Hospital to pay, 13 year old girl Maisha Najeed, a lump sum payment of £2.8 million together with periodical payments of £383,000 per annum until her 19th birthday, following which such payments will increase to £423,000 for as long as she lives.
Maisha was under the care of Great Ormond Street Hospital receiving embolisation treatment for a rare congenital condition called Arterio-Venous Malformation.
Arterio-Venous Malformation is a condition that involves the tangulation of arteries and veins which could result in a bleed and can be treated by injection of glue to block off the bleeding blood vessels and an injection of dye used to check the flow of blood around the brain and head.
Unfortunately, on the day of one of these treatments, the syringes were mixed up and glue was mistakenly injected into the artery to Maisha’s brain. As a result Maisha suffered catastrophic and permanent brain injury.
Perhaps what is most tragic about this case, is that the mix up could easily have been avoided if the syringes been marked as to which syringe contained the glue and which contained the dye. Had this of been the case the error would not have occurred.
Whilst financial settlement can go some way to ensuring that Maisha receives the care she needs it will never compensate for her loss of health.
It is clear that this is one mistake that MUST be learnt from.
As domestic violence within the under 25’s is on the increase, the House of Lords has today been urged to agree the proposed amendment to the Children & Families Bill 2013 that Sex and Relationship Education (SRE) ought to be made compulsory in all state schools.
The Home Office defines domestic violence as including physical, sexual, emotional and financial abuse.
For a number of years Physical and Sexual Health Education has merely covered the mechanics of sex education. The proposals under the Children & Families Bill includes that students ought to be taught how to recognise respect, consent and healthy relationships.
Some may say that placing the responsibility on schools to delve into the depths of relationships is inappropriate. However, in a day and age where violent and sometimes degrading pornography is at the fingertips of teens and where “sexting” is becoming a reasonable expectation, some may argue that such education is no longer enough and that including such compulsory education will merely reinforce the importance of healthy and enjoyable relationships.
What do you think?