As a highly specialised area of law, clinical or medical negligence claims can only be successful if three elements of establishing liability against a defendant are satisfied.
Duty of Care
The first element is known as duty of care. The question to be asked is: did the alleged negligent party owe you a duty to take reasonable care to avoid harm to you? If the answer to that question is yes, the first part of the law is satisfied.
Fortunately, in cases involving medical professionals this question is almost redundant; it is accepted that all medical professionals owe a duty of care to their patients.
Therefore, the issue of duty of care does not usually need to be addressed.
Breach of duty
The second question (or element) to be addressed when considering the liability of a medical professional is: did he/she breach their duty of care to you? That is, did the standard of care provided to you fall below the standard to be expected of a reasonably competent medical professional in the same situation.
It is a defence to any clinical negligence claim that the medical professional acted in a way that would be considered reasonable by a responsible body of medical opinion. However, should a Court consider that opinion to be illogical the defence would fail.
This is perhaps the most complex and hardest to establish of issues in clinical or medical negligence claims. It is also the one that is most difficult to fully understand.
If it is established that the medical professional has breached their duty of care, that breach must have caused some injury. This could be a deterioration in a pre-existing condition, an adverse outcome, or treatment that you would not have had had there not been a breach of duty.
The Claimant must show that but for the breach of duty they would have been in a better position. This is assessed on “the balance of probabilities”. Therefore, the likelihood of the breach of duty being the cause of your injuries is 51% or greater.
It can often be difficult to understand that there are cases where there has been a breach of duty (that is, the required standard of care has not been met) but that has not caused harm, or where solicitors are unable to prove that on the balance of probabilities the negligent care caused harm. In other words, the standard of care was not met, but the outcome was the same despite that.
Time limits in clinical negligence claims (The Limitation Act)
All claims are subject to time limits within which the claim must be commenced at Court. The time limit in clinical negligence claims is set by the Limitation Act 1980 and is referred to as the ‘limitation period’
Essentially, clinical negligence claims are subject to a three year limitation period. That is, a claim must be brought (commenced at Court) within three years of the negligence or the date that you became aware of the negligence.
The Limitation Act says that the relevant date is:
- Three years from the date of negligence; or
- Three years from the date that you knew or ought to have known that you had an injury and that it was caused by negligence.
There is, therefore, some leeway built in. For example, if you have been misdiagnosed by your GP, the date of negligence would be the date the GP ought to have diagnosed you.
However, for the purposes of the limitation period you may not have had knowledge of the negligence until the misdiagnosis was revealed to you; the date you were given the correct diagnosis.
Limitation can become a contentious point in claims, particularly those that involve events that occurred many years ago.
Where a case is, on the face of it, out of time pursuant to the Limitation Act, the Court does have discretion to allow claims to proceed.
This discretion is limited and the Judge would need to consider various factors, including:
- The effect of the delay on the cogency of the evidence;
- The reasons for the delay;
- The nature of the parties involved.
The main problem with cases involving events that occurred a long time ago is the effect that time has on the evidence; memories fade and documents are lost.
It is, therefore, important that you consult a lawyer as soon as you consider that you may have a claim for clinical negligence.
Claimants who lack capacity
The limitation period does not begin to run when a person lacks capacity. That is, a child under the age of 18 or a person that lacks capacity due to their mental health.
In the case of a child, the imitation period will commence on their 18th birthday, unless they continue to lack capacity due to mental incapacity.
In the case of a person incapacitated due to their mental health, the limitation period will commence when they are no longer incapacitated. It may ‘pause’ if they subsequently become incapacitated again. This can become a very difficult issue in cases where a person may have and lack capacity at various points.
What Should You Do Next?
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