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.