Medical negligence claims
Some forensic accountants specialise in medical negligence claims (otherwise known as clinical negligence claims). A medical negligence claim is made when a patient believes him/herself to have suffered a financial loss at the hands of a health professional.
Health professionals have a duty to diagnose and treat their patients to the best of their medical knowledge and experience. If this duty of care is breached, either the professional, or the professional's employer, may be required to pay compensation to the victim.
Forensic accountants are often called in to calculate damages incurred due to medical negligence.
What counts as medical negligence?
Mistakes happen. GPs, surgeons, therapists, nurses and so on, are all subject to the same stresses the rest of us encounter in our home and working lives. Things can go wrong very quickly, especially when a person is under a lot of pressure. We still do not know everything about the human body and even medical textbooks can get it wrong when it comes to medication or treatment.
Health professionals fail to successfully treat their patients everyday - that is the nature of the medical profession- but when does a mistake count as medical negligence rather than an accident?
Four elements make up a medical negligence claim. Before you decide to make a claim, make sure your case contains all four elements, otherwise it will not be worth the fight. You may want to ask yourself if your case involves the following:
- Duty of care - Did the health professional have a duty of care for you and an obligation to prevent unnecessary injury?
- Breach of duty - Did the health professional breach this duty by acting carelessly or not showing a reasonable amount of care?
- Injury - Did this breach of duty cause provable harm to you?
- Loss - Did the injury caused by the health professional's negligence cost you money? E.g. lost working days, costs of care etc.
Reasonable medical negligence claims
Examples of reasonable medical negligence claims include:
- Surgery - e.g. amputating the wrong limb or causing unnecessary scarring.
- Prescription - e.g. diagnosing a medicine that causes harm or a delay in recovery.
- Diagnosis - e.g. wrongly diagnosing someone with cancer and causing serious stress. On the other hand, wrongly giving someone the all clear so they cease treatment that they really need.
- Dentistry - e.g. bad dentistry that causes tooth ache and renders the patient unable to fulfill their role at work.
- Childbirth - e.g. any negligent accidents that cause harm either to the mother or to the unborn baby.
Failure to warn - e.g. failing to warn patients about possible side-effects or risks in relation to a treatment, resulting in harm.
Unreasonable medical negligence claims
Unfortunately there are people who will exaggerate their losses in an attempt to claim more money. Claiming money for someone else's mistake is supposed to be an act of justice, not greed. Although medical professionals do have an obligation to look after us to the best of their abilities, they cannot always predict what's going to happen. The human body and mind always has the potential to do something unexpected. This is why it is very difficult for a solicitor to find proof of genuine negligence.
Example: The drunk woman
A drunk woman staggers into a hospital demanding to be seen. The doctors examine her and prescribe her with no more than a sandwich and a cup of tea. As she makes her way home, she stumbles and hurts her knee. The next day, the woman writes a letter to the head of her local trust complaining that she fell and injured herself because the doctors made her go home. The injury she sustained was not severe enough to warrant medical attention and she did not return to the hospital when it happened. Were the medical professionals really to blame in this case?
Because the woman made a formal complaint, the trust staff were obliged to investigate the claim. In court, it was decided that the woman's injuries were not sustained as a result of negligence and the case was thus dismissed.
The cost of unreasonable claims to public services
Medical negligence claims cost the NHS alone £4.4 billion a year. Many claims are perfectly reasonable, but this is nevertheless a huge sum of money that could be spent on improving medical services and preventing cases of future negligence. It is therefore worth assessing your case very carefully before making your claim. It is easy to write an angry letter in the heat of the moment, but remember that once you have made a formal complaint, the NHS is obliged to investigate it fully.
FAQ making a medical negligence claim
Although some claims are unreasonable and fuelled by greed, many are made by people who have genuinely suffered a loss at the hands of a professional and deserve compensation.
Making a medical negligence claim can be very stressful, especially if the claimant is struggling to get on with everyday life due to resulting bad health. Here we explain how to make a claim and what to expect once it has been made- from the very first stages right up to the courtroom.
Why should I even make a medical negligence claim?
If you are after moral justice - such as an apology or an explanation as to why a health professional acted in a certain way, making a medical negligence claim isn't the way to go. The judge or jury cannot force a defendant to make an apology. You should only make a medical negligence claim if you believe the negligent actions of a health professional caused you a financial loss and you want to claim compensation.
Who do I make my medical negligence claim to?
Before you make any formal complaints, write everything down. Explain exactly what happened, on what date and with which health professional. Include details of all the losses sustained as a result of negligence and try to gather as much evidence as possible from family members, work colleagues and so on. Once you have your facts straight, then you can write a letter of complaint either to your local NHS trust, or to the health professional or organisation you are complaining to.
When should I make my claim?
Never wait more than 12 months from the date of the event to make your claim. If you have a good reason for not making the claim sooner (e.g. going through trauma at the time) then you may be eligible for a time extension.
Will my medical negligence claim be taken seriously?
Very few medical negligence claims actually make it to court. Courts are concerned with protecting the integrity of the health profession and prefer to avoid claims unless very severe. If the situation is particularly serious - e.g. if a child loses a parent, or if an individual requires expensive care at the hands of a negligent health professional, then the case is more likely to reach court.
Who is liable to pay the compensation if my case succeeds?
Private GPs are liable for their own acts and for the acts of all of their employees, including nurse practitioners. It is for this reason that the General Medical Council requires all GPs to have adequate insurance cover.
For all NHS cases, the NHS Trusts or Primary Care Trusts are held vicariously liable for any negligence exercised by their staff. If the claimant is successful the NHS is required to pay damages, not the health professionals themselves (who will be covered by indemnity).
How long will it take for my case to go to court?
The maximum time it takes for a medical negligence claim to go to court is three years. This is known as the 'limitation period'. It is therefore sensible to contact a forensic accountant or solicitor well in advance of this time. Medical negligence claims often involve long periods of investigation.
How long will it take for my case to be resolved in court?
Cases have been known to take up to six years to resolve, especially so in the High Court. The longer the case takes to resolve, the higher the costs.
How much does it cost to go to court?
Going to court certainly isn't cheap. Claimants should seek advice on the likelihood of success. If the case has a low chance of succeeding (less that 60%), then it will not be eligible for court. The financial risk of going to court for medical negligence is thought to be up to £200,000 - depending on who wins and who loses the case.
Because going to court is extremely costly with no promise of success or reward, it is wise to consider the financial risks before going ahead. The claimant may be entitled to receive publicly funded legal aid if:
- they are a child
- they have mental health problems
- they receive a below average income
- they are unemployed.
The Legal Services Commission will need an assessment of the claimant's case by their solicitor or an experienced barrister to determine the likelihood of it succeeding. Legal aid does not cover NHS claims.
How can a forensic accountant help?
Medical negligence claims often require extensive investigation. In order to work out whether or not the claimant deserves compensation, a number of factors have to be assessed. Forensic accountants can be hired to calculate the damages incurred as a result of medical negligence due to their expert financial and investigative knowledge.
Without expert financial investigation, the claimant will not have a leg to stand on in court.
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