Misconceptions of Medical Negligence

22 June 2021

The vast majority of patients who see their GP, dentist or go into hospital will receive good care. In an ideal world, this would happen all the time, and there wouldn’t be a need for lawyers to represent patients’ interests at all. Unfortunately, there are occasions where things do not go the way that they should have done with sometimes devastating consequences.

When this happens, it can leave the affected person feeling vulnerable and not knowing where to turn. Their lives could well have been permanently changed. Even then, in the same way that medical professionals are never deliberately negligent; the affected people typically don’t go out seeking to punish a medical professional for what happened. Everyone should want to understand the who, what, where, when, why and how it happened, and ensure it doesn’t happen again for anyone else. Otherwise, standards can’t improve.

However, whilst the medical professionals can reflect on lessons to be learnt, those injuries will potentially affect the injured person financially, physically and psychologically for the rest of their lives, and they will need compensation to try and repair the damage that has been done. Compensation is not a punishment for the hospital, GP or medical professional for doing wrong, nor is it a reward for the individual for being on the receiving end of it; it is simply an amount of money to adequately (as well as money can) repay the loss to the individual for the position that they should never have found themselves in.

We often see figures in the headlines that compensation and legal costs are taking valuable money away from the NHS. It is easy to believe the headlines when you see significant sums of money being discussed and how it should be spent elsewhere. However, it is important to remember the people awarded those figures, and why they have been made:

When do you receive compensation for medical negligence?

  1. It must be remembered that compensation is only ever paid if negligent treatment has occurred, either accepted by those representing the medical professionals, or a Court determines the same. If there has been no negligence, then an injured person receives nothing.
  2. The compensation, if made, is something that has been either offered or agreed by the paying party, or awarded by the Court. A case cannot reach a resolution without agreement from the paying party, or a lengthy protracted Court process. Cases can go on for years where negligence is denied, only to reach settlement at a later point.
  3. The sum will reflect a fair amount to put that injured person back in the position they would have been, had there been no negligence. This will always be individual to their circumstances. For example, if a negligent labour meant that the child needed round-the-clock care for the rest of their lives; or negligent treatment meant that someone could no longer work, or needed to adapt their property, then it is right that they are compensated to meet those needs.
  4. It is never the lawyers who determine whether a medical professional has or has been negligent. We rely on the opinion of independent medical experts. The expert will always be paid for their opinion, regardless of their conclusions, so they are not influenced by who instructs them or pressured into reaching a particular conclusion.
  5. In the vast, vast majority of cases, those legally representing injured patients will not be paid if the case does not succeed, so it is not in their interests to pursue cases without merit. In contrast, the lawyers representing the medical professionals will typically always be paid.
  6. Solicitors representing injured parties will often only proceed in a small percentage of the enquiries that they receive. Even then, many cases will be discontinued at an early stage, before those representing the medical professionals become involved, owing to lack of prospects. As such, lawyers representing those injured patients and their families have already gone through various stages of sifting out claims without merit, as well as performing a number of investigations, before those representing the medical professionals become involved in the process.
  7. Even if a case succeeds, legal costs are then negotiated with the paying party, or the Court orders the payment of costs that should be made, to ensure that it is fair and reasonable for the claim.

Should medical negligence claims be reduced or capped?

When arguments are made that compensation amounts or lawyers’ fees should be capped or reduced; remember:

  • This may mean that those who have been injured and lost out financially because of negligent treatment are not adequately compensated for their loss.
  • Investigating a case has costs that simply have to be incurred. In a successful case, costs are then negotiated, or determined by a Court. If lawyers are not allowed to appropriately investigate cases, injured patients may miss out on compensation to which they are reasonably entitled.
  • Or, it may pave the way for non-specialists to pursue the non-meritorious claims that the lawyers did not feel appropriate to pursue, which would mean that those representing the medical professionals would need to spend time and money defending, paradoxically costing more money.
  • Or, it may not be viable for lawyers to assist injured patients pursue a claim, leaving the injured patient, or their family, to seek justice on their own.

It is important for everyone involved that there is an appropriate mechanism in place when patients are injured through negligent treatment, to:

  1. Ensure their claim is capable of appropriate, independent scrutiny and investigation.
  2. Ensure they are appropriately compensated when it is appropriate.
  3. Ensure that lessons are learnt when things go wrong, to improve standards for the future.

My fear is that the proposition that the extent of liability for negligently injuring patients should be limited, does not achieve any of these.


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