Clinical Negligence
How to Make a Claim
Step 1: Complain
NHS Treatment
Before you contact a solicitor you should make a complaint. This is a requirement if you want legal aid, but even if you do not qualify for legal aid, it is helpful if you make a complaint. Click here for an example of a complaint. 
Please remember that there is only one thing that stops the complaints process and that is if you indicate that you intend to bring legal proceedings. Therefore do not at any time during the complaints process suggest that you are intending to sue.
There are organisations who aim to help patients make a complaint. The area covered by Park Woodfine Heald Mellows is dealt with by 3 such organisations, all with the umbrella identity of Independent Complaints Advocacy Service (ICAS).
Click the links below for contact details:
When you have complained, we will require a copy of the complaint and the response. If you have a meeting with the NHS, we will require the minutes of that meeting. Even if ICAS recommend that you take your complaint to the next level, you should contact us as soon as the response is to hand to allow us time to get funding in place and to investigate your complaint.
Private Treatment
Some Health Insurers operate their own schemes. In addition it might be possible to complain to the regulatory authority concerned, usually the General Medical Council or the General Dental Council. Contact us as soon as the response is to hand to allow us time to get funding in place and to investigate your complaint
Step 2: Establish the facts
The strongest evidence in the case will inevitably be the medical notes. Medical notes are like the policeman’s notebook in that they are a contemporary record made by someone in authority and therefore the Court tends to rely upon them heavily.
If the patient or their family keep a diary (or have illicitly recorded the appointment) then that would be regarded as strong evidence also.
Most people do not keep a diary, and so most of the factual evidence relied upon will be the medical notes. Park Woodfine Heald Mellows like to get not only the health professional’s notes, but all related treatment notes, including the GP notes.
We then prepare a chronology. The client is asked to check this so we know that it is agreed with. If it is not, we meet to ascertain whether the disagreement can be explained, whether it can be proven, and whether it is pertinent.
Once we are all happy with the factual matrix, we then need to prove breach of duty.
Step 3: Breach of duty
Every health professional owes their patient a duty of care.
The difficult bit is proving he has breached it. The test is very simple:
“was the treatment or advice given by the clinician below the standard required of a responsible body of clinicians of the same specialism”?
It will be appreciated that patients come in various sizes, ages, ethnic backgrounds etc, and so generally there are a number of ways of treating patients with the same illness or problem. If two patients have the same problem in two separate hospitals and one surgeon decides to perform operation AB, while the other surgeon performs operation CD, and one operation goes wrong, that surgeon may not be in breach of duty. The breach is not measured by the result, but whether any responsible surgeon of the same specialism would have carried out the operation that way.
We prove breaches by instructing an expert of the same specialism that we are critical of. If his report is favourable, we then need to prove causation.
Step 4: Causation
Causation is a difficult concept to understand. Basically it is the connection between the breach of duty and the damage. If you can’t establish causation, you lose, even if you can prove breach of duty. We call it the “so what?” defence, i.e., “yes we have breached our duty to you, but has it made any difference”.
To understand this better, look at this diagram:
Here, “B” is the point the patient arrives at hospital and when the hospital fails to diagnose an injury. At “D” the injury is diagnosed, and, in this example, the recovery follows the same pattern as it would have done, but a number of days/weeks/months later. So the “D” to “E” line is what happened and the “B” to “C” line is what should have happened. Here the compensation is the red area, not the green area (which was caused by the patient’s own negligence).
Obviously the graph will vary in each case, but the essential rule is that if there is no red area there is no case. The question of causation is dealt with by appropriate experts.
Step 5: Value
The compensation is based on pain and suffering and out of pocket expenses (past and future).
The pain and suffering value is dealt with by an appropriate expert who will examine you and prepare a report.
The out of pocket expenses that can be claimed are any cost or loss incurred as a direct result of the breach of duty. It usually involves loss of earnings, care, medical expenses, extra travel, etc. If the injuries are more severe then it might include adaptions to the accommodation, nursing care, occupational therapy. In the severe cases we will instruct an appropriate expert to report on what is required. It is a good idea to keep a list of your losses and retain any supporting papers (receipts, wage slips, etc)
In a fatal case the compensation is worked out slightly differently. Also, if the breach of duty involves an unwanted birth, the compensation is also worked out differently. We will advise you how compensation is calculated in such cases.
