What is ‘hospital negligence’?
‘Hospital negligence’ may be defined as a breach of the duty of care by a doctor, nurse or other healthcare professional towards a hospital patient. Although ‘hospital negligence’ refers specifically to personal injury arising from negligent hospital care it effectively falls under exactly the same legal category as ‘clinical negligence’ or ‘medical negligence’.
What is important to remember and is often misunderstood by clients is that sustaining an injury, contracting an illness or the aggravation of any existing medical problems while under hospital care does not necessarily mean that the treatment was ‘negligent’. Even if it is possible to envisage better care, or the medical staff providing the treatment did indeed make some errors, it may well have been the case that illness contracted or the exacerbation of it, or of an injury, was in fact inevitable. In such circumstances a compensation claim will be unsuccessful.
Hospital Negligence and Hospital Accidents
As explained above, the terms "hospital negligence", "clinical negligence" and "medical negligence" are interchangeable. It must be noted, however that not all injuries sustained in a hospital, clinic or GP’s surgery can be defined as “medical negligence” or otherwise for legal purposes.
Even if a trip or fall in a hospital premises, for example, is clearly due to the negligence of maintenance staff employed by the healthcare authority, in normal circumstances it is not an example of “hospital negligence”. Other than specific circumstances where a very ill or weak patient should not have been, for example, walking or even out of bed unaccompanied, ordinarily a trip or a fall is not the result of medical negligence.
That is not at all to say that a patient or indeed visitor to the hospital who suffers such an injury cannot make a successful compensation claim; it is simply that from a solicitor’s perspective it does not fall under the specialist category of hospital negligence and is a personal injury claim like any other, no different that a trip or fall at work or a supermarket.
‘Hospital negligence’ relates directly to negligence in the actual negligent healthcare a patient received from a doctor nurse or other healthcare professional who had a duty of care towards them.
Liability
Hospital negligence is no different from any other branch of personal injury law with regard to the pre-requisite that the injury sustained or illness contracted must have resulted from someone who had a duty of care towards the claimant at the time of and in the circumstances of the accident acting negligently in the performance of that duty.
Clearly, a doctor (and the hopital in general) owes a duty of care to patients. Prospective claimants should, however, be aware that it can often be difficult to prove negligence on the part of the hospital even when an injury has been sustained, an infection has been contracted or a misdiagnosis made.
Negligence
For a hospital negligence compensation compensation claim to be successful, it must be proved ‘on the balance of probability’ that the treatment of the patient by the healthcare professionals involved was negligent and that this negligence caused or contributed to patient’s injury or illness. This means that unlike in criminal law cases in the UK where the guilt of an accused must be proven ‘beyond a reasonable doubt’, a civil court (where cases of hospital negligence will be brought) will find in favour of the party whose story is the most likely version of events, i.e. A much lower burden of proof that the criminal equivalent.
Examples of hospital negligence
It is perhaps impossible to provide an exhaustive list of possible causes of action for claims of hospital negligence however some common examples are listed below:
- Failure to obtain the patient’s medical history or to properly take it into account
- Failure to properly examine the patient or to note all of his or her symptoms
- Error or unwarranted delay in diagnosis of illness or injury
- Failiure to perform the necessary investigations (e.g. X-rays, scans and blood tests)
- Failure to act on results of blood tests or biopsy
- Error in performance of an operation or other medical procedures
- Error in the administration of treatment or medication
- Insufficient follow up care
- Failure to fully communicate the risks associated with medical procedures to patient in advance
- Failing to notice when patients get worse
- Failure to operate when necessary
- Surgical errors
- Failing to provide adequate post-operation care
“How negligent does the treatment have to be?”
When we use the word ‘negligent’ in a non-legal sense it’s meaning can be rather subjective; an action that one person may deem to be negligent another may feel was simply a bit careless or naive. It is therefore important to define what exactly is meant by hospital or medical negligence under UK law.
The law in England and Wales has been largely defined by the landmark cases of Bolam vs Friern Hospital Management Committee [1957] and Bolitho v. City and Hackney Health Authority [1997] which (in layman’s terms) established the principle that the court should ask as to whether a normal competent doctor would have acted in the same manner as the defendant doctor. Therefore even where the doctor’s actions have caused or contributed to the plaintiff’s personal injury his actions may not be deemed negligent if it can be shown that they were the ‘reasonable’ and logical actions of a medical professional or professionals given the information available and the relevant circumstances. As a consequence even when a doctor has made an error, provided that other medical professionals may have made the same decision and that that decision was somewhat logical, that error may not actually constute hospital negligence.
Injury or damage
Logically, for a personal injury claim resulting from an incident of hospital negligence to be successful, the claimant must have sustained some form of injury either physical or psychological as a consequence of the negligent treament administered. A near miss – other than where one can prove that it caused, for example, severe psychological trauma – is not sufficient to justify an award of compensation. Even when health care professionals have acted extremely negligently it must be remembered that a compensation claim can only be made for personal injury, loss or damage that has in fact been suffered.
Time periods for making a claim for hospital negligence
In normal circumstances, the relevant time limit for making any form of personal injury claim is three years after what is known as the “Date of knowledge.” The date of knowledge, generally speaking, is the date on which the injury was sustained or the illness contracted. Save for a limited number of exceptions, the right to claim for compensation under British law is lost exactly three years after the date of knowledge.
It should, however, be noted that in cases of hospital negligence such as an illness that went unchecked due to misdiagnosis, for example, the date on which the claimant’s cause of action occured (i.e. the doctor’s negligence) may at times be difficult or even impossible to clarify. In cases like these the ‘date of knowledge’ is in fact the date on which the claimant became aware of the illness or injury caused by the negligence and he or she will therefore have three years following that date to commence proceedings for compensation.
It is nonetheless extremely important that an injured party contacts a solicitor at his or her earliest convenience following an incident of medical negligence. Waiting too long may result in the right to ask for compensation being lost forever.
That said, even if a person feels that it is too late to make a claim it is still worthwhile to consult with a solicitor as an exception may apply to their case.
Time periods relating to children as victim’s of hospital negligence
When a child has been a victim of hospital negligence the ‘date of knowledge’ (explained above) of the injury is in fact the minor victim’s eighteenth birthday i.e. thee three-year limitation time period does not begin to run against the minor victim until he or she reaches majority. Thereafter, under the current law in England and Wales, the injured party, who would be by now an adult has two years within which to issue court proceedings. Nonetheless, a minor claimant can make a claim for compensation prior to celebrating their 18th birthday provided a parent or guardian legally acts as his or her ‘next friend’.
What if the hospital is not totally responsible for my injuries?
Although it may seem obvious, it is worth pointing out that people go to a hospital precisely because they are suffering from an illness or injury. It is of course possible that this initial injury, such as one sustained in a road traffic accident (or even illness e.g. severe food poisoning) was caused by the negligence of another party.
What happens if the hospital staff provide negligent treatment that exacerbates the initial problem? In such circumstances a ‘percentage’ of the blame can be attributed to the two or more parties who are at fault for the plaintiff’s injuries and so the liability can be shared between several defendants on a percentage basis.
How will the value of a hospital negligence case be assessed?
Type of injury
Injuries or illnesses contracted due to negligent hospital care will be valued with regard to their seriousness and whether or not they require objective proof (i.e. expert diagnosis) to be believed (e.g. a broken bone or a visible scar versus soft tissue strain). Clearly, the permanency and persistence of the injury are also important factors.
Prognosis
Clearly if the symptoms are expected to be long-term or permanent this will increase the amount of compensation that can be expected. The age of the injured person is also very significant. In the context of a permanent injury, same may be ‘worth’ more to a younger claimant than to an elderly man or woman. To put it simply, this is because a younger person will, in normal circumstances, have to live with injury for a much loner period of time.
To take a simple example; if a 25 year old person loses his or her due to a surgical error, they may have to live with the consequences of that injury for potentially 60 years or more. A 75 year-old suffering a similar injury, will, again in normal circumstances, not have to cope with that disability for such a long period of time.
Medical History
Your medical history and records are an important factor in assessing your claim. If you have a prior history of similar or identical injuries and of treatment of the same area of the body this may affect your claim significantly. Perhaps the key question is whether the medical negligence involved was the primary cause of the injury or only an aggravating factor?
Impairment of quality of life
Our work or careers are not the most important things in life and as such any medical negligence claim for personal injury compensation will take an impairment or loss of quality of life into account when value is being assessed. This is a very individual assessment for each plaintiff as every persons passions and interests will be different; a significant injury to the index finger for example may be viewed more seriously again if it can be proved that the plaintiff was a keen amateur pianist prior to the accident.
Severity and persistence of pain suffered
The very principal behind any personal injury compensation, be it for hospital negligence or otherwise, is indeed to compensate you for your injury and related suffering, therefore the greater the pain suffered and persistence of same, the higher the compensation awarded is likely to be.
Liability
As noted above, even when a patient has received negligent medical treatment the cause of an injury or illness is not always obvious. In many situations one party e.g. the hospital staff that provided treatment, may be completely at fault, however it is also true that more than one, or several, factors might have contributed to the injury that has been sustained. Moreover, one of the causal factors may have in fact been the negligence of the victim himself. How then is blame to be apportioned? Is the claimant entitled to any form of compensation if he or she has contributed to their own downfall?
In British law, “Contributory negligence” is the principle that an injured party i.e. the claimant may possibly have contributed to their own injury by acting negligently when faced with the obvious and known conditions of the situation.
In hospital negligence cases this may include circumstances for example where the claimant has in fact worsened his or her illness or injury by failing to co-operate fully with follow-up treatment provided (e.g. missing scheduled appointments or refusing to take prescribed medication etc.) when that care may have cured or alleviated the damage sustained.
When this is compared with the hospital authority’s negligence, the extent of contributory negligence may actually defeat the claimant’s case (i.e. the claim will be unsuccessful) or reduce the amount of compensation awarded.
Medical special damages following negligent hospital care
Ordinarily the costs of any specialist medical treatment that a victim requires or will require due to the injuries sustained in the subject hospital can be compensated for in full or in part.
Loss of earnings
It should be clarified that loss of earnings is in fact a separate, additional, aspect to the hospital negligence personal injury claim. It does however often cause great confusion for clients and frustration for their layers. Claimants regularly compare the settlement neglotiated on their behalf or award made by the court to an acquaintance or a friend of a friend who received “£20,000 more than I did!” for an injury or illness that appears to be similar to their own.
It is of course a mistake to compare one settlement with another without having access to all of the facts in evidence, the version of events that we hear about at work or over a coffee with friends can offer differ greatly from the reality.
Even taking misinformation into account, the difference in overall settlement figures may well simply be due to a significant loss of earnings which the other claimant was awarded because of a lengthy absence (or even a predicted absence) from work.
Logically, the amount of money awarded corresponds to the particular person’s earning power or indeed potential earning power. Regarding the loss of earnings aspect of the claim, the gravity of an injury or illness contracted itself is relevant only insofar as it restricts that person from doing their job. Personal circumstances are a factor, and different injuries can have entirely different consequences for the claimant depending on his or her work e.g. a knee injury to a rugby professional or a facial scar to an actor.
Please note that each case is hospital negligence is unique. If you have recently suffered an injury or developed an illness due to hospital negligence you may have a valid personal injury claim. You are advised to discuss all of the points raised in the preceding article with a solicitor as soon as possible.