08/01/2018 All about clinical negligence

All about clinical negligence

Having studied clinical negligence law on the Legal Practice Course, and then undertaken the first seat of my training contract in this area, I have developed an interest in this type of law. I mentioned this to a friend a few months ago and she expressed a concern that assisting clients to sue medical professionals was problematic. My friend isn't a lawyer and doesn't know much about clinical negligence, so I didn't worry too much about her comment, but it did make me wonder if this was a common opinion. Public perception of my job isn't the most important thing to me, but I would prefer that people had more awareness of what this area of law is really about.

First, victims of a health professional's negligence will not be suing the individual doctor or nurse: it will be their insurer who defends the claim and, if the claim succeeds, actually comes up with the money. If the client also wants to make a complaint about the doctor personally then they will need to do this through the NHS or private healthcare provider's complaint procedure and will not need a lawyer to assist them. 

Sometimes people who are not involved with the law criticise clinical negligence claimants because 'negligence' means that the harm wasn't caused on purposethe healthcare provider didn't mean to hurt them. Of course, a situation where a doctor hurt a patient intentionally would be far worse and would be dealt with through the criminal courts. However, I don't think this means that there should be no civil recompense for patients who have suffered unintentional harm. To use an analogy, say a client came to me in my capacity as a lawyer and, through failing to reach the standard of a competent solicitor, I lost £1 million of their money. I didn't do it on purpose, but the client is still £1 million poorer and might well wish to sue my firm for the money.

This brings me to my next point: without clinical negligence claims, patients would have no way of recovering what they have lost as a result of the negligence they have suffered. Where a person has become permanently disabled (the largest claims usually involve a baby who has been negligently delivered, causing lifelong disability that they would not otherwise have suffered from), it's not possible to undo the physical harm, but it is possible to be compensated for loss of earnings or home healthcare equipment required as a result of the disability. 

Despite this, some people still argue that clinical negligence claims should only be made against private healthcare providers, and not against the NHS, as this is public money. While I completely agree that taking money away from public services should not be done lightly, only a very small percentage of the NHS budget is allocated for defending clinical negligence claims, so even if all claims were banned, it still wouldn't solve the problems the NHS faces. Many of the damages that claimants claim for (eg, loss of earnings for disabled patients, as above), if they could not be recovered through civil action, would then have to come from public money in the form of benefits, so the public purse would still be poorer off either way. 

Overall, clinical negligence seems to me to be a rewarding area of law to practise, although I recognise that claims should not be made lightly or spuriously. Fortunately, so does the law, which sets very strict restrictions on whether such claims can be brought and how they must be conducted.

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