Self-help guide
What is a medical accident or medical negligence?
If you have suffered an injury due to medical treatment, this may be referred to as a ‘medical accident’, ‘adverse incident’, or ‘patient safety incident’.
If there have been complications as a result of your treatment, this may not necessarily mean there is someone to blame. In some cases, complications can occur as a result of the inherent risk of treatment and not necessarily be the result of a mistake by the practitioner treating you.
On the other hand, a mistake or error in your care which occurs due to an act or omission on the part of a practitioner may be attributable to negligence. Negligence in this context involves three elements:
- the duty of care,
- breach of that duty of care, and
- damage as a consequence.
In simple terms, if the care you received fell below the standard you were entitled to expect as a patient, and if you came to harm as a consequence, there is a possibility that there was negligence in your care.
Some examples of medical negligence may include:
- failing to diagnose your condition or making the wrong diagnosis,
- making a mistake during a procedure or operation,
- giving the wrong drug,
- failing to obtain consent to treatment, or
- failing to warn about the risks of a particular treatment.
What action can I take if I have been the victim of a medical accident?
If you have been injured during the course of medical treatment, your first priority will be to get further treatment to correct the injury. This may involve seeking a second opinion or getting a referral to another hospital.
It may be that you are entitled to seek compensation by taking legal action if there has been medical negligence. Whilst this guide explains the process to some extent, you will find it helpful to discuss the possibilities of this with one of our caseworkers or a specialist clinical negligence solicitor.
You may wish to seek a full explanation, an apology, and assurances that the mistake will not happen to somebody else. If this is the case, the complaints procedure is better designed to achieve this than legal action, which is about compensation. Should you intend to progress a claim for compensation, very often it is helpful to proceed by way of a complaint to seek information in relation to your injury and to assist further in the investigation of a claim.
Making a complaint to the NHS
If you decide to make a complaint, this can be done through a variety of means depending upon the identity of the person whom you allege has been at fault in relation to your injury. If the injury occurred whilst receiving NHS care from a local health and social care trust, a complaint may be raised in accordance with the complaints procedure operated by said trust. The complaints procedures are available online and facilitate a complaint being made in a way that best suits you, including by phone, letter, or email.
You should try to provide the complainant with the following:
- details of how to contact you,
- who or what you are complaining about,
- where and when the event that caused your complaint happened, and,
- where possible, what action you would like the organisation to take.
If your complaint relates to treatment received from your GP or a private healthcare practitioner, you should request a copy of the complaints procedure from the relevant practitioner. Once again, when raising a complaint, the information referred to should be provided.
Separate from your right to raise a complaint in relation to your care, it should also be noted that various health and social care organisations, including local trusts and agencies, are under an obligation to conduct an investigation in relation to an ‘adverse incident’ when it occurs. An adverse incident is defined as ‘any event or circumstances that could have or did lead to harm, loss or damage to people, property, environment or reputation’.
Whilst the level of the review/investigation depends upon the seriousness of the event, the principle requires that the healthcare provider initiates a review of such an adverse event even without the necessity of a complaint being raised by the injured party. You will most likely find it helpful to discuss the possibilities of this with one of our caseworkers or a specialist solicitor.
Making a legal claim for compensation
It is important to note that if you decide to make a legal claim, this will only lead to compensation and is not designed to deliver:
- an apology,
- discipline for the staff involved, or
- the healthcare provider changing its practices.
The decision to take a legal action should not be taken lightly. Proceedings can be expensive, lengthy, and stressful to the individual concerned. In such circumstances, you will require the services of a specialist medical negligence solicitor, as a medical negligence claim is nearly always complicated.
Avma can put you in contact with specialist medical negligence solicitors in Northern Ireland who are members of the Avma Specialist Clinical Negligence Panel and are signed up to Avma’s Code of Conduct. Use our Find a Solicitor tool to find a specialist clinical negligence solicitor in your area.
Limitation (time limit for making a claim)
You are obliged to commence your legal claim for compensation by issuing formal legal proceedings within three years of the date on which the incident occurred (or the date on which you realised you had suffered an injury).
In the case of children, the three-year time limit does not apply until their 18th birthday, so they have until the eve of their 21st birthday to make a decision concerning the commencement of a legal claim. If proceedings are commenced on behalf of a child under the age of 18 years, the action is taken by a parent acting as a ‘next friend’ on behalf of the child.
If the claim involves a patient who is not capable of managing their own affairs because of disability, the three-year time limit does not apply until (and unless) they overcome the disability. The normal limitation period may apply, however, if someone is acting under a power of attorney or as a controller.
Instructing a solicitor for a claim
You should always be able to obtain free advice from a solicitor. In Northern Ireland, every solicitor is required to advise you in writing of the basis upon which you will be charged. It is important to check that the document reflects your understanding of who will be responsible for legal fees and outlays.
The solicitor will need to make an assessment of your situation to decide if you have a strong enough case for them to take on. They will need as much information as possible to do this. They will often recommend that you initiate a complaint via the complaints procedure in order to obtain useful information and to gain access, for example, to the relevant treatment records.
When information has been gathered in relation to the circumstances of the query, the solicitor will decide if your case has a reasonable chance of success and will provide you with advice in relation to the progression of the claim.
Whilst it is difficult to generalise, it is normally necessary to obtain a report from an independent medical expert in relation to the disputed care. As noted above, medical negligence involves the failure on the part of an individual healthcare practitioner to provide a reasonable standard of care. In assessing whether or not the medical practitioner in question has provided appropriate care, that judgement is best made by a similarly qualified independent expert. In practical terms, that means an independent report from an expert will be necessary to determine if the care in your case was of a reasonable standard.
If an independent expert identifies substandard care, it is likely that further medical evidence will be necessary to determine the nature of the damage sustained by you by virtue of the poor care. You will be advised by your solicitor in association with this.
Funding options for a legal claim
Private funding
You may be able to fund the legal claim yourself; your solicitor will be able to advise you about the cost of bringing a claim.
Public funding/legal aid
You may be eligible for public funding if you are on a low income or benefits. Your solicitor will help assess whether you are eligible.
Trade union help
If you are a member of a trade union, you may be eligible for help with the costs of a legal claim from them.
Legal expenses insurance
Your solicitor might ask about insurance policies you have, as it is possible they may provide legal expenses insurance which can cover legal work for a claim. Often there is a set limit on the costs and you would be expected to instruct a solicitor on the insurer’s list, rather than necessarily the one you’ve chosen.
In addition to the legal expenses insurance, certain insurance companies provide after-the-event (ATE) insurance. This can be obtained during the course of legal proceedings to indemnify you in relation to the potential costs of a legal action. Such insurance is normally provided in cases where there are good prospects of success and detailed investigation has already taken place. You will probably find it helpful to discuss the availability of this type of insurance with your solicitor at the time of initial consultation.
No win no fee agreements
No win no fee agreements in Northern Ireland are unlawful. It is a requirement of legal practice in Northern Ireland that if you seek to recover your costs from the party at fault in relation to a successful medical negligence claim, you must have first agreed, at the outset of the action, that you will be responsible for the said costs irrespective of the success or otherwise of the actions.
In other words, you are only entitled to recover costs in the event that you are responsible for them. This is known as the ‘indemnity principle’.
It is important, therefore, that when you agree to proceed with legal action in Northern Ireland, the terms of your agreement with your solicitor are fully and accurately recorded in a ‘letter of retainer’. You should ask your solicitor for such terms in the event that you agree to proceed with legal action.
How do I prove that I have grounds for a legal claim?
Medical negligence claims are often complex cases. For you to be successful in your legal claim, there are two strands of the case — you must be able to prove both breach of duty and damage.
Breach of duty
To establish breach of duty, you must prove that the healthcare practitioner has failed to act in accordance with a practice accepted as reasonable by a responsible body of medical professionals skilled in that particular are of practice. In other words, you must show that the practitioner has acted in a manner inconsistent with the reasonable practice of his or her peers.
Damage
If you prove a breach of duty, you must then go on to show that the damage you have suffered is as a consequence of that breach of duty. If for example the damage would have occurred in any event, even had the breach of duty not occurred, you will not succeed in proving damage in your case. It is not enough to prove that somebody breached a duty of care — you must also prove that injury flowed as a consequence of that act or omission.
As above, the investigation conducted by your solicitor will focus on determining whether or not there has been a breach of duty in your care and, if so, whether you came to harm as a consequence. Independent expert evidence will be obtained. They will base their opinion on the documentary evidence (medical records and other information) and your instructions. If a supportive report cannot be obtained, your action will not succeed.
Damages (compensation)
Following the assessment of your case, your solicitor will be able to give you a rough idea about the level of compensation you might expect if your case is successful. They will take into account certain social security benefits you get because of your injury (such as employment and support allowance) because this could affect how much compensation you will receive.
You can claim compensation for any injuries or losses suffered which were the direct result of the negligent care. These can include:
- pain and suffering,
- service claims (services the injured party would have given to other family members or receive from them),
- ongoing treatment,
- if you cannot carry out certain activities/hobbies,
- loss of earnings,
- the cost of any extra care or equipment you may require,
- the cost of adapting your home,
- psychiatric or psychological injury, and
- The cost of therapies, e.g. physiotherapy or occupational therapy.
Many medical negligence cases are resolved before evidence is heard. In fact, the majority of cases are resolved before trial. Both sides are encouraged to settle the matter quickly to avoid incurring extra costs. It goes without saying, however, that for a case to settle, it must have merits.
Pre-action protocol for clinical negligence actions
The protocol for clinical negligence actions in Northern Ireland is designed to encourage early communication between patients and healthcare providers of any perceived problems, concerns, or dissatisfactions about treatments.
The protocol seeks to improve the development by healthcare providers of early reporting and investigation systems. It also seeks to secure disclosure of sufficient information to enable patients and healthcare providers to understand the issues and encourage the early resolution of disputes.
It requires the early provision of relevant medical records by healthcare providers to patients and their legal representatives. By doing so, the protocol serves to place the parties in a position where they may be able to resolve cases fairly and early without litigation, together with the promotion of mediation and/or other appropriate forms of alternative dispute resolution.
The protocol has been designed to promote an overall ‘cards on the table’ approach to litigation in the interests of keeping the amount invested by the participants in terms of money, time, anxiety and stress to a minimum, consistent with the requirement that the issues be resolved in accordance with the accepted standards of fairness and justice.
Where litigation is appropriate, it should be conducted economically, efficiently, and in accordance with a realistic and flexible timetable set by the court. The protocol acknowledges that clinical negligence litigation frequently involves complex and technical issues that require time-consuming, detailed investigation with the assistance of specialist expert opinion. It has the potential to be particularly stressful and emotionally demanding.
That being so, the protocol sets out a procedure which must be observed in advance of the issue of proceedings to ensure both plaintiff and defendant receive and provide sufficient information to allow each party to determine the merits of the action before proceedings are issued and costs are incurred.
In essence, the plaintiff is required after proper investigation of the merits of the action to notify the defendant of the basis of the claim. The defendant, after receiving notification, must within a period of four months provide a detailed response either admitting the allegations or, if liability is being rebutted, setting out clearly the reasons for same.
By doing so, the parties are able to make an informed assessment of the likely prospects of success before they resort to proceedings. This protocol has proved useful where applied in Northern Ireland, however the protocol is still voluntary and there are no costs sanctions for a simple breach.
Court procedure stages in Northern Ireland
The following is a summary of the principle stages a medical negligence case would normally reach when proceedings have been issued. It is intended to give you an idea of the main procedural steps involved, but your solicitor will be able to explain the procedure in detail both before a case is issued and throughout the duration of the court process.
If court action is necessary in your case, and the case is deemed to be of sufficient monetary value or complexity, your solicitor will arrange to issue proceedings in the High Court in Belfast. As of November 2017, all cases with a value above £30,000 will be required to be issued in the High Court. If a case has a value of less than £30,000, it may be issued in the County Court.
It should be noted that the Civil Justice Review recommended raising the jurisdiction of the County Court to £60,000. Nevertheless, clinical negligence litigation will usually, by reason of complexity and/or value, proceed in the High Court. The authors of the Civil Justice Review considered that, given the complexity of such cases, County Court judges should usually refer such cases up to the High Court, save in those few cases where they are considered straightforward and without the usual accompanying complexity.
This guide deals with the procedural stages of a High Court action, however the procedures in the County Court are similar.
The action is raised by means of a document known as a ‘writ of summons’. When issued, this maintains its validity for a period of one year and must be served within that period. After service, the defendant, the respondent to the claim, must submit a ‘memorandum of appearance’ within 14 days.
After entry of the memorandum of appearance, the plaintiff has a period of six weeks in which to serve a ‘statement of claim’. This sets out the case the plaintiff makes against the defendant. It provides details of the claim, to include allegations of negligence, details of the personal injuries, and the various heads of loss sustained.
After service of the statement of claim, the defendant must serve a ‘defence’. This sets out the basis upon which the defendant responds to the claim and must be served within six weeks after the statement of claim. In a case of medical negligence, the defendant is expected to set out the basis upon which the claim is being resisted, if indeed liability for the accident is repudiated.
After the formal pleading of the action, the parties will engage in a process which involves the exchange of further information, either in the form of answers to specific questions (notices for particulars and interrogatories) or by the exchange of documentary evidence (a process known as discovery).
In Northern Ireland, as soon as an action has been issued which is identified as a claim for clinical negligence, it will automatically be listed for review before an officer of the High Court, the Master of the King’s Bench Division, for review. That review will take place approximately one year after the date of the issue of the writ of summons.
At that point, the Master will enquire in respect of readiness of the action, and if matters are outstanding which require to be attended to before the action can be heard, they will give directions in association with the case. Those directions may concern the completion of medical evidence, the provision of discovery, or other information. The Master may review the case more than once, and in clinical negligence claims, normally does so up to three times.
After the formal pleading of the case has been completed, the High Court rules now provide for the exchange of medical evidence on liability and damage. Medical evidence on liability will be exchanged simultaneously between the representatives of the plaintiff and the defendant. Evidence on damage will be exchanged sequentially, with the plaintiff’s representatives providing their evidence in the first instance, and the defendant providing their evidence thereafter, as directed by the court.
The exchange of medical evidence, both liability and quantum, will promote expert discussion pursuant to an agreed agenda, which will serve to either resolve the matters in dispute between the parties or, at worst, clearly delineate the nature of the dispute for the purposes of the court hearing.
At the same time as exchange is taking place in relation to medical evidence, it is customary that evidence will be exchanged in relation to the nature and extent of the loss sustained by the plaintiff. This may include evidence on injury, loss of earnings, care, occupational therapy, etc.
When the case has been fully pleaded, medical evidence has been exchanged, experts have met and discussed the case, and evidence has been exchanged in respect of loss, the case will be ready for hearing. At that point, the case may be set down and a date fixed either by allocation of the court or by agreement of the parties. In Northern Ireland, the usual time period for the prosecution of a clinical negligence case is between three and five years from the date of the initial enquiry. The actual time taken depends upon the complexity of the case, the number of expert reports, and the nature of the damage sustained. It is of course possible to have the case heard much more quickly in cases where urgency is required, for example ill health.
The hearing of the case, if required, will take place at the Royal Courts of Justice in Belfast. The case will be listed before the High Court judge and a period will be set for the hearing of the action.
Where liability remains in dispute, it is likely the case will take at least three to four days to be heard, but in complex actions such as birth trauma, listings can be for a period of three or four weeks. Hearings commence at 10:15 am on the first day of trial, and on that date the trial judge will be allocated.
The vast majority of clinical negligence cases settle without the need for a trial before the court. Only a very small percentage of meritorious claims proceed to hearing because of a dispute on the facts, the law or on quantum.