Clinical Negligence

Clinical negligence (also known as ‘medical negligence’) is a complex area of law and requires highly specialised solicitors who understand the medical issues involved. Specialist solicitors must be able to grapple with complicated medical evidence and ensure that the issues are properly explained to clients so they can make informed decisions about their case.

We specialise in clinical negligence and our team has handled a broad range of cases from missed fractures to serious brain/spinal injuries resulting in permanent disability. If you are concerned about medical treatment that you or a loved one has received, phone us now. Someone from the clinical negligence team will usually be able to speak to you immediately but if not, we guarantee that a qualified specialist will call you back within an hour. Our initial advice is absolutely free.

Chris Setford

Chris Setford

CEO

Normally, patients receive a high standard of treatment from medical professionals. Sometimes however, the standard is below what patients are entitled to expect. Such treatment would be negligent and if it has caused injury or death there may be a right to compensation. People receive medical treatment in a variety of ways and settings both privately and on the NHS. Negligent treatment can come from doctors, surgeons, nurses, midwives, GPs and a range of alternative practitioners.

Negligence usually occurs when there is an unnecessary delay in diagnosis or treatment of a condition such as a stroke or cancer leading to more serious injury to the patient. Sometimes patients are given the wrong treatment or medication. This can have catastrophic consequences for the patient.

Babies can suffer serious injuries due to birth or neonatal mismanagement by doctors and midwives. We specialise in such injuries.

If you are concerned about medical treatment you or a loved one has had, please get in touch as soon as possible. There are strict time limits for bringing clinical negligence claims.

We want to help. Our clients are the centre of everything we do. Following negligent medical treatment, clients often need help to rebuild shattered lives. We will talk everything through with you in understandable terms with care, sensitivity and complete professionalism.

If your case has been rejected by another solicitor (even after an investigation) please phone us – we still may be able to help.

We will make a fast decision about your case – usually immediate, sometimes up to 24 hours. Once your case is taken on, we will regularly update you on progress. More importantly we will always be contactable, returning phone calls and emails the same day.

Remember, our initial advice is free. If you’re worried about medical treatment you have had, phone now and speak to a specialist. If no one is available, a specialist will phone you back within an hour.

Subject to assessment, cases can be dealt with on a ‘no win, no fee’ basis. When our specialist solicitors take on your case, we will take out an insurance policy to cover certain expenses and to protect you from having to pay any of the other side’s legal costs. If your case is unsuccessful, you pay nothing. There may be some circumstances where you will need to fund certain expenses but these will be insured. If you win your case, most of your legal costs will be recovered from the other side but any shortfall must be paid from your compensation.

If I take on your case the first thing I do is take a detailed statement (your version of events). I will then obtain your medical records and consult with my medical experts to determine whether we can win your case.

In clinical negligence the injured party is required to prove two key elements to establish a case. The first is breach of duty of care. The second is causation of injury. Patients are entitled to a ‘reasonable’ standard of care – one that is in accordance with accepted/standard practice. If care falls below a reasonable standard it will be considered by the court to be negligent or ‘substandard’. This would be a ‘breach of duty’. It is important to note that patients are not entitled to ‘optimal’ treatment. Proving breach is not enough on its own to make a successful claim. It must then be shown that had the breach of duty not occurred the injury would, on balance, have been avoided. This is known as ‘causation’.

The strength of your case will rest heavily on the support of independent medical experts who ultimately will give evidence in court about your case. Usually both sides will have their own experts but there are circumstances when there might be a ‘joint’ expert – in other words a single expert instructed by both parties.

Separate medical experts may be required on breach of duty and causation. In more complicated cases, several experts may be needed to comment on causation as the mechanism of injury may not be so obvious. The time it takes to bring a claim varies on the amount of expertise needed and the seriousness of the injuries. Once I discuss your case with you, I will develop with you a case plan and timetable based on the unique facts of your case. I will endeavour to tell you as early as possible if your case has poor prospects of success – I have no desire to create false hope or unrealistic expectations.

Be aware that many firms have a high pressure culture where volume of work is more important than quality. I limit the number of cases I take on at any one time to ensure that they get my fullest attention. Unlike many other solicitors I personally oversee every aspect of my cases and you will be able to contact me personally. I respond to all phone calls/emails/letters the same day and you will receive regular updates from me by whatever method you prefer (phone/email/letter).

This is a frequently asked question and at the early stages of a case, the most difficult one to answer. Subject to proof of breach of duty and causation, an injured party will be able to claim compensation for losses attributable to the negligence. There are two types of damages (compensation): general damages for pain and suffering and special damages which relate to specific financial losses arising from the negligently caused injury. Special damages include things like loss of earnings, nursing care and adaptive aids and equipment. Compensation is calculated to take these things into account as well as requirements into the future.

Cerebral palsy, brain injuries and spinal injuries are life changing not only for those who have suffered the injury but also for those who are left to care for the injured person or who may have been financially dependant on the injured person who is now disabled. With severe injuries, working out the value of a claim can be time consuming and input may needed from a range experts in neurology, rehabilitative medicine, care, case management, occupational therapy, physiotherapy, speech therapy, accommodation and assistive technology.

Subject to assessment, cases can be funded by way of conditional fee agreements (‘CFAs’) also known as ‘No Win, No Fee’ agreements. The CFA is utilised in conjunction with an insurance policy to cover certain expenses (such as fees for medical records, medical expert fees, court fees). In this way, we can guarantee that if your case is unsuccessful, these expenditures are covered. If you win your case, the CFA entitles your solicitor to recover a success fee over and above the normal costs. The insurance premium is only payable if the case is won. If you win, the other side will pay most of your legal costs but not the success fee and insurance premium – these and any shortfall in costs paid by the Defendant would need to be paid out of the compensation you recover.

Most claims in this area relate to delay and failure to diagnose fractures (see also Accident and Emergency). Sometimes doctors will miss signs of a fracture and fail to x-ray the patient. Less commonly, there is failure to interpret the x-ray(s) correctly and serious injuries are missed. I have extensive experience with cases involving missed arm, leg, facial and more serious neck and spinal fractures.

Treatment depends on the seriousness of the fracture. A simple fracture might only need conservative treatment such as splinting or casting and monitoring. Sometimes surgery is needed and an open reduction, internal fixation (known as ‘ORIF’) is needed. This will involve holding the bones in place with metalwork and screws. Sometimes fractures are treated incorrectly or are missed. This might result in the bone knitting in the wrong position which can cause pain and joint problems. Sometimes, further surgery can be undertaken (osteotomy) to re-position the bones but this is not always possible.

Orthopaedic claims can also involve joint replacements such as hips and knees. Sometimes the wrong implant (prosthesis) is used or wrongly positioned resulting in joint failure or other problems requiring further surgery.

In extreme cases untreated spinal fractures can result in death or paralysis. If the bones in the spine (known as vertebrae) are fractured, the fragments can cause pressure on (or sever) the spinal cord resulting in a range of life changing injuries. At the other end of the spectrum, further complicated surgery might be needed to put things right or the patient might be left with chronic, sometimes debilitating neck/back pain.

There is a risk of infection with all orthopaedic surgery but sometimes signs of infection are missed. This will result in a much worse infection sometime affecting the bone (known as osteomyelitis). Such infections can be difficult to eradicate and in extreme cases may result in loss of a limb (amputation).

Fractures increase the risk of DVT (deep vein thrombosis) in patients, particularly those with a history of blood clots. Blood thinning medication (anticoagulants) should be given to reduce this risk but this is sometimes overlooked leading to injury and complications.

Most claims in this area relate to delay and failure to diagnose the disease (see also General Practice). As we all know, the earlier a cancer is diagnosed, the better chance there is of treating it. Sometimes, the delay is so long that the disease spreads (metastases) and the outlook for the patient is very poor. In other cases the delay causes the need for more extensive surgery/treatment and damage to surrounding structures when a simple local excision (removal) is all that would have been necessary.

If a tumour gets too large, it may become ‘inoperable’ or it may be in a difficult location and chemotherapy and radiotherapy might be needed first in an attempt to reduce or eliminate it. These treatments have very unpleasant side effects and may not result in a cure.

We have handled cases involving damaging delay in diagnosis of breast cancer, various oral cancers, prostate cancer (see Urology), bowel cancer, lung cancer, spinal tumours and brain tumours. We have also acted in cases where patients have been misdiagnosed with cancer or given the wrong cancer treatment resulting in serious injury.

This country provides some of the best ‘A&E’ care in the world, though recently it has been beset with problems of overuse. It is the job of A&E doctors and nurses to triage patients, treat them if possible or refer them on to the appropriate specialist team (eg orthopaedics, cardiology, neurosurgery etc) for treatment. Sometimes however, mistakes are made – symptoms are misinterpreted, investigations not done (x-rays, scans, blood tests) which would have revealed the underlying problem.

A&E failures happen because doctors and nurses miss the opportunity to diagnose various conditions. We have acted in cases involving missed: heart attacks, stroke, cancer, serious infections, meningitis, fractures, internal bleeding, head injuries (including brain haemorrhages), appendicitis, deep vein thrombosis (DVT) and pulmonary embolism (PE).

We rely on GPs as the first point of contact to our medical services. GPs require a wide range of knowledge on various aspects of health. While GPs can treat many conditions, they are required to identify conditions that require more specialist treatment and to ensure that patients are referred as required to the appropriate specialist teams. Sometimes however GPs miss key signs or symptoms and fail to refer the patient quickly enough or at all.

We have acted in cases of GP failures involving prescription of the wrong medication, heart attacks, stroke, cancer, serious infections, meningitis, fractures, appendicitis, deep vein thrombosis (DVT) and pulmonary embolism (PE).

Claims in this area often relate to the delay in diagnosis and treatment of various cancers, particularly prostate and bladder cancer (See Cancer). Such failures/delays can have devastating consequences resulting in the spread of cancer, reduced survival and other complications.

Sometimes there is a failure to catheterise a patient resulting in permanent bladder damage (neuropathic bladder). This can result in permanent continence issues requiring permanent/intermittent catheterisation or in extreme cases, urostomy.

Men can often suffer from what is known as a hypertrophic (enlarged) prostate which is a benign (non-cancerous) condition. This may cause urinary problems (known as bladder outflow obstruction or ‘BOO’) and the patient may require catheterisation. This problem can usually be remedied with medication or surgery in the form of a transurethral resection of the prostate (known as a ‘TURP’) where part of the prostate is removed to restore urinary flow. If this condition is missed, patients might suffer from repeated urinary tract infections and/or urinary reflux causing permanent kidney damage.

We have acted in cases of delayed diagnosis and treatment of prostate cancer and BOO. I have also acted in cases of serious bladder damage caused by the failure to catheterise.

Spinal surgery can be performed by either a neurosurgeon or a specialist orthopaedic surgeon. Patients with unstable spines due to degenerative disease (eg arthritis) or from traumatic injury may require fusion of a number of vertebrae to prevent further damage and/or reduce pain. The delicate spinal cord runs through the centre of the vertebrae and can be easily damaged when the vertebrae are fractured or if one of the ‘discs’ (this is the cushioning material between the vertebrae) becomes enlarged.

If a disc becomes enlarged or ‘prolapsed’, it can put pressure on the spinal cord causing neurological symptoms. If this condition is not detected and treated in time, it can result in permanent, devastating injury – in extreme cases, paraplegia. Prolapsed discs are often managed conservatively (with pain management etc) but they become dangerous when certain ‘red flag’ symptoms occur which include urinary/faecal incontinence and numbness in the genital/anal area. This is known as ‘Cauda Equina Syndrome’ (CES) If untreated by surgery to ‘decompress’ the affected area, the patient will suffer permanent injuries such as numbness, double incontinence, impotence and problems with walking.

In other cases, complications can occur if the theca (the protective membrane around the spinal cord) is perforated, causing a CSF (cerebro spinal fluid) leak. This can leave the patient with extreme pain and discomfort and increases the patient’s susceptibility to serious infections such as meningitis.

In some cases patients are taking anticoagulants (blood thinning medication such as Warfarin) and this is not managed properly when spinal surgery (see also ‘Surgery’) is undertaken. As a result the patient is susceptible to post operative bleeding around the spine which can cause serious injury/complications.

We have extensive experience with cases involving delayed diagnosis and treatment of CES and spinal fractures. We have also acted in cases of substandard spinal surgery resulting in severe neurological injuries.

The anaesthetist has an extremely important role when any operation is undertaken. He or she must safely administer a range of drugs and anaesthetic agents to patients and must also ensure that the patient remains stable throughout the operation and record a range of observations.

A spinal anaesthetic might be administered incorrectly resulting in damage to the spinal cord which will have a devastating impact on the patient. In some cases the anaesthetist may simply have not been paying attention and the patient arrests resulting in loss of oxygen to the brain and devastating injury to the patient. In still other cases, the anaesthetic team may have positioned the patient incorrectly and /or perhaps the operation was longer than expected resulting in nerve damage and permanent disability.

We have acted in cases involving mismanagement of anaesthetic leading to severe brain and spinal injuries.

The brain controls all of our physical (motor) functions and thinking (cognitive) functions. This organ can be injured in many ways and in extreme cases such injuries can lead to physical and learning disability. Patients in these circumstances might suffer from speech, feeding and mobility problems. In other cases, the injury is more subtle but devastating in any event because the injured person may suffer from personality change, memory loss and social problems. A brain injury can be caused by a lack of oxygen/blood flow to the brain. This is often referred to as an ‘hypoxic ischaemic’ injury. This could happen as the result of a heart attack and cardiac arrest. This can also happen after extreme asthma attacks or allergic reactions (anaphylaxis).

This type of brain damage can also occur as a result of child birth (see ‘Cerebral Palsy’).

Brain damage can also occur following a stroke where blood supply to the brain is disrupted or following a brain haemorrhage (intracranial bleed, subdural haematoma). Such a haemorrhage will disrupt blood flow within the brain and cause damaging pressure on the brain. Brain haemorrhages can occur as the result of an aneurism – a weakness in a blood vessel.

In other cases, brain damage occurs following the development of a tumour (see ‘Cancer’).

We have acted in a number of cases where there has been delay in diagnosis and treatment of brain tumours and subdural haematomas leading to disabling injuries. I have also acted in cases involving such injuries to children (see ‘Cerebral Palsy’).

Our cases have involved many types of surgery – some of these are listed below:

  • General surgery – (appendix, cholecystectomy)
  • Brain surgery – (tumour, aneurism, haemorrhage)
  • Neurosurgery – (spine, brachial plexus)
  • Colorectal surgery/ gastrointestinal surgery – (colostomy, colitis, Crohn’s Disease, incontinence)
  • Gynaecological surgery – (hysterectomy, oophrectomy)
  • Urological surgery– (circumcision, prostate, TURP, incontinence, urostomy)
  • Orthopaedic surgery – (ORIF, TKR,THR)
  • Cardiothoracic surgery – (hear/lung)
  • Podiatric surgery – (hallux valgus deformity, bunions)
  • Maxillofacial surgery – (facial fractures, surgical tooth extractions)
  • Bariatric surgery – (gastric banding, gastric bypass)
  • Vascular surgery – (compartment syndrome, DVT, amputation, diabetic limb)

Sometimes the surgery is performed incorrectly, but more often complications are overlooked and the patient suffers injury as a result of delay. Most errors in surgery relate to delay in identifying a serious condition or post operative complication such as damage to other internal organs or nerves, infection or bleeding.

Most surgery is to the abdominal area and this can be undertaken by way of an open procedure (laparotomy) or through a ‘minimally invasive’ technique (laparoscopy). Laparoscopy involves the use of small incisions and the insertion of probes into the abdomen. Certain gynaecological operations can be done in this way and this is also a common way to remove an infected appendix. Different standards apply to each approach. For example, minor damage to surrounding structures is an accepted risk of laparoscopic surgery but missing the signs of damage post operatively is not acceptable. Whereas in a laparotomy, the accepted margin of error is much less as the surgeon will have a clear view of surrounding structures.

Other examples of surgical errors stem from the failure to diagnose and treat colitis or a blockage of the bowel. This can result in a severe infection and the need for radical surgery to remove all or part of the bowel. In extreme cases, the patient might require a colostomy bag (permanent or temporary), or even die.

Sometimes there is damage to the bowel or bladder during surgery and the patient begins to develop signs of infection and ultimately sepsis (peritonitis) which can be fatal unless the patient is returned to theatre for the perforations to be repaired. Patients who have had surgery before or who suffer from certain conditions such as endemetriosis, may have adhesions. This increases the risk of perforation significantly.

In other cases, excessive swelling following an injury or surgery can cut off the blood supply to a limb resulting in compartment syndrome. If surgery is not performed quickly enough to alleviate the pressure caused by the swelling, there is a danger that the limb might be lost or severely damaged.

Diabetics will often suffer from poor lower limb circulation in their later years. This requires careful medical management as patients can suffer from ulcers and infections which might result in loss of the limb.

Obstetric/Midwifery negligence

This is a highly specialised area of litigation. It involves numerous medical experts and complicated evidence about the nature of the injury and whether it would have been avoided with better treatment. During child birth, a hypoxic ischaemic injury can occur when the baby becomes exhausted (‘distressed’) because of a lengthy or complicated labour. Problems often arise when there is a failure when there is a failure to monitor the baby’s heart rate (‘FHR’) during the labour and signs of distress are missed. The ‘CTG’ trace is very important here, because it provides continuous, detailed information about the condition of the baby. If interpreted correctly, the CTG trace may give early indications of a problem. In other cases, this type of injury can be caused by uterine rupture, cord prolapse and placental abruption. Sometimes injury can arise when problems are recognised but there is still a delay in delivering the baby via caesarean section or instrumental delivery (forceps, ventouse).

Ultimately, unless delivery is expedited when these problems arise, the baby will be starved of oxygen and suffer brain damage. Damage occurring in this way falls within the broad category of ‘cerebral palsy’. In reality, there are several types of cerebral palsy each with symptoms that correlate to the mechanism of injury. Experts can examine MRI scans of the brain and identify patterns of damage which can show how and when the brain injury occurred.

It is extremely important to ensure that cases of this complexity are dealt with experienced, specialist solicitors. If you are concerned about the circumstances surrounding the birth of your child or the child of someone close to you, phone Patrick now on 01635 887 662 or 01635 887 665.

Neonatology/Paediatric negligence

Sometimes cerebral palsy is caused by poor management after birth. Once born in a hospital setting, care of the baby will then be handed over to the neonatologists/paediatricians. If there is an emergency, the paediatric team will usually be on hand at the time of delivery. Newborns are susceptible to a number of conditions particularly if they are premature or if they were born after a difficult labour. Brain damage can be caused by a delay in resuscitating the infant following birth. This could damage an otherwise healthy baby or worsen damage already caused by a complicated labour. Sometimes there is a failure to detect and treat hypoglycaemia (low blood sugar) or hydrocephalus leading to brain damage and fits. Damage can also occur immediately after birth or in the early months of life following the failure to diagnose and treat jaundice, bronchiolitis or meningitis. If the mother is Strep B positive, there is a higher risk of neonatal infection which must be managed. In cases where a baby is premature, the lungs may not have fully developed and there is a susceptibility to respiratory distress syndrome (RDS) which can lead to deprivation of oxygen and brain damage.

If you or someone close to you have had problems like this, phone Patrick now on 01635 887 662 or 01635 887 665.