How to Prove Medical Negligence

how-to-prove-medical-negligence

Medical negligence can leave a lasting impact, both physically and emotionally. If you think you have been the victim of negligent care by a medical professional, a good way to begin healing some of the damage is by making a claim.

However, medical negligence claims are rarely straightforward and many people struggle to prove that they are even a victim in the first place. For that reason, collecting enough evidence for your claim is vital.

When it comes to proving your medical negligence claim, there is no substitute for an experienced solicitor. In this article, we are going to share some of the steps you or your solicitor will need to take in order to prove that medical negligence actually took place.

Determining Whether You are a Victim of Negligence

When it comes to illness or injury there is always the risk that even with the right care, treatment can fail. This poses a challenge for potential victims of negligence, as the first question is always whether the damage was the result of bad care or the underlying medical condition.

So, before you embark on your claim, you need to ensure what happened to you definitely qualifies as negligence. You will need to speak to a solicitor for a definitive answer when it comes to your case, but for now, here is a general definition:

  • You must have been owed a duty of care by a medical professional
  • That duty must have been breached
  • As a result of the breach, you must have suffered a physical and/or mental injury
  • The injury you suffered must have resulted in a loss

How to Prove Medical Negligence

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While it may seem obvious to you that medical negligence took place, it is up to you to be able to prove it in court. With this burden of proof on your shoulders, the effective gathering of evidence becomes paramount.

This evidence can come in all shapes and sizes depending on the specifics of your claim, but below are five common forms of evidence to gather.

1. Collect Medical Records

The first step in proving medical negligence is collecting your medical records, a task ordinarily completed by your solicitor. This will allow you to build a picture of the underlying issue you required treatment for and scrutinise whether the care you provided was reasonable.

Alongside demonstrating why you required care, reviewing your records is important for identifying other relevant medical entries that could impact your case. While this information will not necessarily affect the amount of compensation you receive, it may need to be referred to in the expert’s report – something we will look at in more detail later.

2. Track Your Injuries

Depending on the nature of your injury, you may be able to track its progression with photographs. They say a photo is worth a thousand words and this is certainly the case when it comes to medical negligence, as it can save you trying to describe your injury.

Photos can then be used together with the opinions of an expert to draw a comparison between what the outcome of your treatment should have looked like, and what it actually looked like.

Alongside photographs, you can also track your injuries by keeping notes on how they are impacting you each day. At the very least, these notes will allow you to easily recall how your injury progressed.

3. Document the Impact

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It goes without saying that medical negligence will have serious ramifications on your health, but you should also be sure to document the impact it has on your day to day life.

This could include noting when you first became aware that you may have experienced negligent treatment and keeping your own records of medical appointments, including the treatment provided and any advice you are given.

In order to accurately calculate the damages you will claim for, you should also take care to track any expenses you have incurred as a result of the negligence. This could include travel for appointments, loss of earnings, the cost of private medical treatment or therapy, and the purchase of equipment, such as a wheelchair.

4. Look for Witnesses

The next step in the evidence-gathering process is to look for witnesses who can provide statements relating to the negligence. The closer to the point of negligence the better, so, for example, another medical professional present would be ideal, though this is not always possible.

At the very least, you can provide your own witness statement. You can also gather statements from your family and friends to provide insights into how the negligence has impacted your life.

5. Gather Medical Experts

One of the most fundamental parts of the evidence-gathering process is speaking to a medical expert who can provide a report on your condition and when or if you are likely to fully recover.

This is essential in determining not only whether medical negligence took place, but also what damages you can claim for. Without an expert, it is extremely difficult to prove that the care you received was negligent, simply because it is unlikely you will have the required experience or knowledge.

An expert’s report can be organised by your solicitor and aside from strengthening your case, can, in some circumstances, also provide you with some closure when coming to terms with how the negligence will affect your life.

Difficulties in Proving Medical Negligence

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Throughout this article, we have highlighted the need to use a solicitor when putting together your medical negligence claim. The reason for this is that medical negligence claims are notoriously complex and often throw up difficulties that require legal expertise.

Common difficulties people face in medical negligence claims include:

  • Proving harm was caused by negligence and not the underlying condition that was being treated.
  • Passing the ‘Bolam’ test and proving that the medical professional did not act according to accepted and proper practice.
  • Passing the ‘Bolitho’ test and proving that the defence of the medical negligence (eg. the body of doctors and supporting witnesses) cannot withstand logical analysis.
  • Finding an expert that can speak authoritatively on your injury and the care that you were provided.
  • Proving ‘invisible’ injuries. Where negligence has resulted in damage to your mental health, gathering proof of the existence and extent of the injury can be extremely difficult.

How Long Do You Have to Prove Medical Negligence?

If you suspect you have a medical negligence claim then time is of the essence. In most cases, the time limit for bringing a claim for medical negligence is three years. That means three years start from the date of the negligence or from the date that you have knowledge of certain facts that make up your claim, as is set out in the Limitation Act 1980.

In some cases, this time limit is different. For example:

  • Children who have experienced negligence have three years from the start of their 18th birthday.
  • Those who experienced negligence when they were unable to deal with their affairs have three years to make a claim once they regain the ability to do so.
  • The court can allow claims outside the three years if they think there was a good reason for the delay.

What is important to realise is while three years may seem a long time, it can be quite a tight deadline when you consider how much evidence you need to gather before your claim can be made.

Start Your Claim

Proving medical negligence is no simple task. Therefore, it can take a long time to build a strong case, which is why you should speak to a solicitor as soon as possible.

If you suspect you may have a valid medical negligence claim, get in touch with Nayyars’ Solicitors to find out how we can help you.

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