Proving medical negligence

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Carrie Tennick, July 16, 2020

Proving medical negligence can be more challenging than proving other forms of personal injury. This is because it is up to you to prove that it happened rather than the person responsible having to prove that it didn’t.

You will have to show that you suffered an injury, which caused pain and suffering. And you will have to prove that unacceptable or substandard care on the part of the healthcare practitioner was the cause of the injury. It is not enough to show that you didn’t receive quality care – you have to show that it caused you pain.

This makes evidence invaluable when presenting your case.

When making a medical negligence claim, there are various forms of evidence you can rely on to help you prove what happened.

Complaints

If you’ve suffered from substandard healthcare, the first thing to do is use the hospital’s, clinic’s or GP’s internal complaints procedure. You can detail what happened, drawing the organisation’s attention to the problem that caused your injury. See our guides on complaining about NHS treatment or private healthcare for advice.

You are entitled to see the documents that arise from any resulting investigation. This could help you put your evidence together when you decide to pursue a medical negligence claim. So make sure you keep a record of what you’ve sent and received in relation to your complaint.

If your complaint did not result in a satisfactory outcome, you can take on the services of a specialist medical negligence solicitor. They could help you draft your letter of complaint.

Medical evidence

Your medical records will be one of the main pieces of evidence when putting together your negligence case. You are entitled to receive your medical records, as established by the General Data Protection Regulation (GDPR) of 2018. It means you can access your records for free and within one month.

Your records will detail the treatment you underwent, which means your legal team will be able to see what your healthcare providers did at the time and whether anyone raised any suspicions.

In some cases, your solicitor may want you to see another medical specialist. They can offer an expert view on whether your injury was caused by the treatment you received. This can help to prove that you initially received substandard healthcare and that it was responsible for your injury.

The expert you see will typically be a consultant or other specialist in their field. It is unlikely that you would see a GP or other general medical professional as they wouldn’t have the specific knowledge to conclusively state that your care caused you harm.

Witness statements

In most cases of personal injury, you will benefit from the inclusion of witness statements in your defence. They share the experiences of everyone involved at a certain time, providing an idea of what the injury has done to you.

But it’s not just witnesses to the treatment that can be called on. If your friends and family saw the after effects of the injury, they can explain what they saw. They can detail what you were like prior to the incident and then following it. You yourself can also provide a witness statement, detailing how the injury has affected your quality of life and your health.

Medical professionals can give witness statements. This could be the expert you saw as part of your legal case or someone you saw for corrective treatment after your substandard care. They can explain what happened and how it was either not the right course of treatment or not performed correctly and how it has resulted in harm.

Other evidence

If you have suffered any financial losses as a result of your injury, you should include these in your legal case. This is because you could be compensated for them, helping you get back into the position you were in before the injury happened.

You could be covered for a loss of earnings after not being able to work. You could also have any relevant expenses you’ve incurred paid back to you – so it pays to keep the receipts and proof of purchase for these expenses. They include anything from travel to and from medical appointments – whether it’s parking fees, public transport or taxi costs – to medical care or home adaptations you have to pay for.

The most important thing to do when you want to pursue a medical negligence claim is beginning it as soon as possible. You have three years from the date of the negligence – or the date you discovered that negligence was responsible for your injury – so it’s important to start your claim quickly.

For help finding a solicitor to present the strongest case possible for you, give First4Lawyers a call or request a call back. Our understanding claims advisors will help you work out the best course of action for you.

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