Exploring Clinical Negligence: A Personal Case Study

Re: Clinical Negligence Claim

Following our initial meeting we would be pleased to advise you on your clinical negligence claims. From the particulars taken from such meeting we understand that the initial leg injury occurred while you were on tour with your football team in Oxfordshire during a football game. As a result of your injury you were admitted to the Royal Oak hospital for surgery which was subsequently performed negligently, thus affecting your mobility. You expressed that you also wish us to conduct a case against the Community Health team of Swansea NHS Trust for failing to keep physiotherapy appointments of which you should be having three times a week, and on one occasion going without for almost twenty one and a half weeks;

which has adversely affected your recovery process.

Options
There are three possible types of action that may arise out of a clinical negligence claim. These include criminal action, civil action and administrative action. Where a medical professional is guilty of gross negligence or has maliciously harmed a patient it may result in criminal prosecution. In your case I believe either civil action or administrative action would be more appropriate. In a civil action the claimant may sue for damages in court providing your case meets specified principles. Where you do not have a cause of action arising from clinical negligence but have a complaint regarding poor or unprofessional service there are NHS complaints procedures available.

Civil Action

Liability
Each NHS trust hospital is responsible for the acts and omissions of its staff, therefore a hospital authority could not escape liability if there was negligence during a course of treatment. The duty of care to give proper treatment is owed by the authority, despite performance being delegated to the medical practitioner. If a claim is successful it will be the hospital that pays the damages as health care staff in the NHS are covered by NHS Indemnity, meaning their employer is responsible for clinical negligence claims. Each NHS Trust is also a separate legal entity, meaning that it has its own legal status and may be pursued in its own name. In this case there would be two independent grounds for claim; the Oxfordshire NHS Trust and Swansea NHS Trust.

Breach of Duty of Care
A breach of legal duty of care must be established in order for a clinical negligence claim to be successful. We must prove that:
a) The medical practitioner owed a duty to take care of you and not cause injury;
b) That this duty was breached;
c) That that duty is the cause of your harm, i.e your impaired mobility and prolonged recovery; and
d) You have sustained loss or damage as a result of that harm

Standard of Care
Any medical practitioner is required to meet the standard of other ordinary skilled men or women in that particular art.

The practitioners conduct is to be judged against the state of professional knowledge at the time of the matter concerned. The acceptable standard of care is assessed by the general practice of doctors in England and Wales and is usually defined by what would be a reasonable standard of care. However there are sometimes difficulties when assessing this as there are sometimes differences of opinions on the matter. This is known as the ‘Bolam test’. An action will not amount to negligence unless it is carried out without ordinary care.

Considering the facts of your case I believe it would be found that the surgeon acted without reasonable care and not in line with proper practice accepted in his profession, providing the surgeon had not mentioned that mobility could be adversely affected before the surgery took place. The breach of duty test will then be satisfied.

Regarding the claim against the physiotherapist, it must be established that the actions of the Community Health team’s actions fell below the Health and Care Professions Council Standards of Conduct Performance and Ethics that governs physiotherapists. Referencing the failure to keep appointments and the Consultant’s statement I believe that the breach of duty test would be

satisfied.

Causation
In addition to proving the standards of care were inadequate, we must also establish that the negligence was a significant cause of injury. The basic test for establishing causation is the ‘but for’ test- but for the defendant’s negligence would you have suffered the injury. However to be successful we must also prove that the injury sustained was reasonably foreseeable and not too remote. In this case your injury is cumulative and the responsibility of each defendant needs to be assessed as to their contribution to your injury.

We may not be able to establish whether the negligent surgery was a material contribution to the injury, as medical science may not be able to prove the damage would have occurred ‘but for’ the defendants negligence, coupled with the lack of physiotherapy causation will be difficult to prove. However assessment would be simpler if you have suffered no pre- existing knee or leg problems and the treatment should have fixed the injury.

As you previously stated, your consultant has assessed the ‘actual’ damage caused by the lack of physiotherapy in stating that it has prolonged your recovery process and may result in long term damage, thus making the causation far easier to prove regarding this claim.

Outcome
You must be able to establish that you have suffered damage for which a claim can be made to be awarded compensation. This includes physical injury as well as financial loss such as loss of earnings and future healthcare provisions or psychiatric injury. General damages are awarded for losses that cannot be mathematically calculated. Past loss of earnings is established using witness evidence and documentation. Claims can also be made for past and future medical care expenses, e.g physiotherapy and rehabilitation. Provisional damages may also be issued by the court if there is a chance that the claimant will develop due to the negligence some further deterioration. The aim of the court is to put you in the same position as if the injury had not occurred.

Burden of Proof
The burden of proof on the balance of probabilities is on the claimant.

This means that we must provide the evidence that shows that on the balance of probabilities, that the medical professional in question did in fact breach his duty of care to you.

Limitations

The time limit for bringing a clinical negligence claim is three years. The time runs from the date of the negligence or from the date that you had knowledge of the factors that make up the claim.

Funding

Legal Aid is no longer available for clinical negligence claims of this type, following the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

The usual mechanisms for funding a clinical negligence claim are:

a) Private Funds

b) Legal Expense Insurance- some insurance policies cover personal injury claims.

c) Conditional Fee Agreements- some solicitors make take on your case on a ‘no win no fee’ basis. If the case is not successful you would not have to pay the other side’s solicitors fees. However this is only available in straight forward cases, so it is unlikely this would be a viable option for you.

.

Complaints

procedure

ENGLAND

All NHS trusts and bodies are covered by the NHS complaints procedure. Under the complaints procedure you can obtain:
• An explanation of what happened
• An apology or statement of regret
• Steps to review procedures that caused you harm

A complaint can be made verbally, in writing or electronically and should be raised directly with the NHS Trust concerned.

Limitations
The time limit for making a complaint is no later than twelve months after the event or twelve months from the date you were aware of the issue.

If you are not satisfied with the response to your complaint, you have the right to request an independent review of your complaint by the Parliamentary and Health Service Ombudsman, however this is unlikely to be granted unless there is a potentially unavoidable death involved or a wider public interest.

Compensation
Ex Gratia payments (a payment made without recognising any liability or legal obligation) may be made but no additional compensation may be sought at a later stage.

WALES

The NHS Complaints Procedure in Wales is called ‘Putting Things Right’. A complaint is made by contacting the concerns team at the NHS Trust.

Limitations
The time limit for making a complaint is no later than twelve months after the event or twelve months from the date you were aware of the issue.

If you are not satisfied by the outcome of the investigation you may take your concern to the Public Services Ombudsman. The Public Services Ombudsman for Wales has legal powers to look into complaints about public services in Wales where you have received unsatisfactory service.

Redress

Redress relates to situations where you may have experienced harm as a result of your treatment. Redress can comprise of:
• An explanation
• A written apology and
• A report on the action which has or will be taken to prevent similar incidents arising in future
• An offer of financial compensation and/or remedial treatment- medical treatment which is offered to you in order to try and restore you as near as possible to the position you would have been in had the medical harm not occurred.

As is the case for pursuing a civil claim for negligence, financial redress can only be considered if it is proven that the NHS body has failed in its duty of care and that that breach in the duty of care has caused the harm. It is only when both these tests are satisfied that payment of compensation will be considered. Financial compensation is conditional that you will not seek to pursue the same redress through further civil proceedings.

Compensation
Under redress a maximum amount of compensation that can be claimed is £25,000. If an offer of compensation is made, you have six months from the date of the offer to either accept or reject it. If you decide to accept the offer, you will be prohibited from pursuing a claim through the civil litigation route at a later stage.

Advice
There is nothing to stop you taking legal action and having a complaint investigated at the same time. Legal action should not delay or prevent a complaint investigation.