Medical negligence occurs when a healthcare professional fails to provide a standard of care expected in their profession, resulting in harm to the patient leading to an injury, illness or the worsening of an existing health condition. There are several ways in which medical negligence can happen, including surgical errors, misdiagnosis and incorrect treatment.
In Scotland, medical negligence cases are pursued under personal injury law, also known as the law of delict. Medical negligence, is also known as clinical negligence or med neg. You may have also heard the American name ‘mal practice’.
In Scotland the law imposes on us all a general duty to take reasonable care in our day-to-day activities. Medical Negligence cases are legally complex as they require a level of understanding of the medical conditions that can arise from negligence, knowledge of medical procedures themselves, and errors in healthcare that can lead to injury. These aspects have to be considered alongside the necessary legal tests.
It’s extremely important, if you decide to make a medical negligence claim, that you instruct someone like us at Speir Buchan to progress your claim.
Anyone who has suffered serious injury or disability as a result of negligent NHS or private medical care can make a medical negligence claim for compensation. Special rules apply to children, adults with mental incapacity, and claims arising from someone’s death.
Children and teenagers under the age of 18, or anyone with mental incapacity, must make their claim via a ‘litigation friend’. This is usually a parent or guardian in the case of a child, or a partner or other adult family member in the case of an adult with mental incapacity.
In medical negligence claims, compensation for serious injury and disability usually includes a sum for the injury, and sums to compensate for financial losses and the cost of meeting the needs that arise from the disability and injury. Our knowledge and experience mean that we seek to recover the maximum compensation in claims for catastrophic and life-changing injuries. We also ensure that our clients receive their compensation in the way that is best suited to meet their needs.
The legal tests for medical negligence came from a case called Hunter v Hanley. This case set out the test for establishing negligence in diagnosis or treatment on the part of a doctor.
In medical negligence we need to show that a medical professional has been proved to be guilty of such failure as no medical professional of ordinary skill would be guilty if acting with ordinary care. In other words, a mistake made by the medical practitioner must be an error which no competent medical professional in that field would have made.
To be successful in showing medical negligence, there are three tests which must be satisfied:
It is only if a practitioner has failed to meet the minimum acceptable practice, will they be considered to have acted negligently. A failure to meet the best practice possible, or gold standard, is not enough. If the medical professional can show that the course of action he or she chose is supported by a body of respectable opinion within the profession, then negligence may not be established.
When we progress a case of medical negligence for you, in addition to 1 to 3 above, we need to address liability, causation and loss. The terms liability, causation and loss require to be established in all personal injury claims. We need to show:
The burden of proof sits with you as the pursuer (the injured person). This means that you need to prove the negligence caused the injury or damage you experienced. This can be difficult in cases which are medically and scientifically complicated, where the medical condition may have a variety of different causes and symptoms.
The time limit for raising court proceedings is three years from the date of the injury. This is the general rule. The ‘clock’ typically begins to run from the date of the incident or when the individual became aware (or should have become aware) that they suffered harm due to medical negligence. This is known as the ‘date of knowledge’. However, there are specific provisions in the law that may extend or alter this time limit in certain circumstances.
The key points regarding time limits in medical negligence cases in Scotland include:
Date of Knowledge: If the harm is not immediately apparent, the three-year limitation period may begin from the ‘date of knowledge’. This is the date when the individual knew or should have known that the injury or harm was a result of medical negligence.
Children and Incapable Individuals: Different rules may apply for cases involving children or individuals who lack capacity. In such cases, the three-year limitation period may begin to run when they reach the age of 16 in Scotland or regain capacity.
Extension of Time: In some cases, the court may have discretion to extend the time limit if it considers it equitable to do so. However, such extensions are not guaranteed, and the court will assess the circumstances of each case. In our experience, discretion is rarely applied without a very good basis.
It is crucial to seek legal advice promptly if you believe you have a medical negligence claim. Failing to bring legal proceedings within the time limits may result in the claim being time-barred, and you may lose the right to pursue compensation.
Medical negligence can take various forms. Here are some common types of medical negligence claims:
Failure to accurately diagnose a spinal injury in a timely manner can lead to delayed treatment and worsened outcomes. If a healthcare professional fails to accurately diagnose a medical condition or delays the diagnosis, leading to harm or worsening of the patient's condition, it may be grounds for a medical negligence claim.
Surgical mistakes, such as performing the wrong procedure, operating on the wrong body part, or leaving surgical instruments inside the patient, can result in serious harm and may be considered medical negligence.
Administering incorrect medications or doses, especially those affecting spinal conditions, can lead to serious consequences. Mistakes in prescribing or administering medications, including incorrect dosage or the wrong medication, can lead to adverse effects and may be the basis for a medical negligence claim.
Injuries sustained by a baby during childbirth due to medical negligence, such as improper monitoring or errors during delivery, may give rise to a claim.
Patients have the right to be fully informed about the risks, benefits, and alternatives of a proposed treatment or procedure. If a healthcare professional fails to provide adequate information, and the patient suffers harm as a result, it could be a basis for a claim.
If a healthcare provider fails to warn a patient about known risks associated with a particular treatment or procedure, and the patient suffers harm that could have been prevented with proper warning, it may constitute medical negligence. Failure to obtain proper informed consent, which includes adequately informing the patient about the risks and potential outcomes of a spinal procedure, can be considered negligence.
Substandard care during the postoperative period, such as inadequate monitoring, failure to recognise and address complications, or improper follow-up, can lead to harm and may be the basis for a claim.
Negligence by nursing staff or hospitals, such as inadequate supervision, failure to prevent falls, bed sores or poor hygiene practices, can also be grounds for a medical negligence claim.
Negligence by a General Practitioner (GP), who is a primary care doctor. It means that they may have failed to meet the standard of care expected of them in their professional capacity. This can include misdiagnosis, failure to refer, improper treatment, failure to provide adequate information, or other actions that deviate from accepted medical practices.
A treatment error refers to a mistake or oversight in the medical treatment provided to a patient. It can encompass a wide range of issues, including errors in diagnosis, medication administration, surgical procedures, and other aspects of medical care. Treatment errors can occur due to various reasons, such as miscommunication among healthcare professionals, inadequate training, equipment malfunctions, or a failure to follow established medical protocol
Sepsis is a serious medical condition that occurs when the body's response to an infection results in an inflammatory cascade that can lead to widespread tissue damage, organ failure, and, in severe cases, death. It is a medical emergency that requires prompt and aggressive treatment. Sepsis can be caused by various infections, including bacterial, viral, fungal, or parasitic infections. Common sources of infection leading to sepsis include pneumonia, urinary tract infections, abdominal infections, and skin infections. Early detection and prompt treatment with antibiotics and supportive care are crucial for improving outcomes in sepsis cases. Failure to diagnose or treat sepsis in a timely manner can result in severe complications and may be considered medical negligence.
Medical negligence leading to amputation refers to situations where a patient loses a limb due to a healthcare provider's failure to meet the standard of care, resulting in harm. Several factors can contribute to such cases such as surgical errors, misdiagnosis or delayed diagnosis, infections, medication errors, vascular issues, complications during treatment Negligent management of complications or inadequate response to postoperative issues that could lead to the need for amputation, failure to obtain informed consent, poor follow-up care, failure to adequately inform the patient about the risks and potential outcomes of a procedure, including the risk of amputation and lack of communication.
Neglecting to identify and act upon warning signs of complications, such as neurological deficits or signs of infection, can be considered negligent.
If medical professionals lack the necessary training or supervision, it could contribute to errors in diagnosis, treatment, or surgical procedures related to spinal injuries.
Medical negligence in a spinal injury case can occur at various stages of care, from diagnosis to treatment and follow-up. Negligence may be present due to surgical errors, anaesthesia errors, postoperative care and negligence, rehabilitation and follow-up care,
Fatal medical mistakes, often referred to as medical errors or adverse events, can tragically result in the loss of a patient's life. These errors can occur at various stages of healthcare delivery and may involve different aspects of medical care. Here are some examples of fatal medical mistakes:
Accurate and thorough medical history-taking is a fundamental aspect of healthcare, and mistakes during this process can lead to misdiagnosis, inappropriate treatments, and patient harm. Common mistakes include: incomplete history, failure to update information, over reliance on electronic health records, language and communication barriers, leading questions, failure to ask follow up questions, assuming patient understanding, social and cultural factors, not documenting adequately, ignoring psychosocial factors and not addressing sensitive topics.
Failing to carry out correct diagnostic actions, including X-rays, scans, and blood tests, can have serious consequences for patient care. Diagnostic errors can result in delayed or incorrect treatment, unnecessary suffering, and, in some cases, life-threatening outcomes. Here are some common mistakes related to diagnostic actions: failure to order necessary tests, inappropriate test selection, delay in test ordering, misinterpretation of test results, failure to follow up, incomplete test information, inadequate experience, over reliance on testing, technological errors or failure to consider alternatives.
Misinterpreting test results is a significant concern in healthcare, as it can lead to incorrect diagnoses, inappropriate treatments, and potential harm to patients. Various factors can contribute to the misinterpretation of test results. Here are some common reasons why test results might be misinterpreted: inaccurate testing, failure to consider clinical context, lack of communication, diagnostic bias, complex results, failure to engage multi-disciplinary approach, failure to follow up, incomplete information, technology issues and limited experience or training.
Prescription errors occur when mistakes are made in the prescription or administration of medication. These errors can happen at various stages of the healthcare process, from prescribing, interactions to dispensing and administering. Prescription errors can have serious consequences for patients, ranging from mild side effects to severe health complications.
Anaesthesia mistakes can have serious and potentially life-threatening consequences for patients undergoing surgery or medical procedures. Anaesthesia is a critical component of medical care that requires precise administration and monitoring to ensure patient safety. Mistakes include: dosage errors, delayed administration, failure to monitor vital signs, anaesthesia awareness, intubation errors, equipment failures, drug allergies and interactions, inadequate preoperative assessment, over reliance on automated systems and failure to adjust anaesthesia plan.
Inadequate post-operative care refers to substandard or insufficient medical attention and monitoring provided to patients following a surgical procedure. Proper post-operative care is crucial for the patient's recovery, the prevention of complications, and the overall success of the surgery. Inadequate post-operative care can lead to various adverse outcomes and complications.
Neglecting a patient's overall health refers to situations where healthcare providers fail to consider and address all aspects of a patient's well-being, including physical, mental, and social factors. Providing comprehensive and patient-centered care involves addressing not only specific medical conditions but also considering the broader context of an individual's health.
It is important to note that each case is unique, and the specific circumstances surrounding the alleged negligence will be considered.
It is advisable to seek legal advice from a solicitor who specialises in medical negligence claims, such as our team. We will assess your case and guide you.
How long do medical negligence claims take?
The length of medical negligence claims varies considerably depending on how complex the case is alongside expert input and court process. Where liability is admitted, claims are often quicker to settle, but it less frequent that liability is admitted at an early point in a medical negligence case, if at all.
More complex and serious injury cases will nearly always take longer with the average time of 2 to 5 years for some cases. It is important your case is not rushed and that a full understanding of your circumstances is acknowledged and established. In some cases, it is necessary to let the injury, rehabilitation or treatment take place to fully understand your position. We may also need to allow an Inquiry or Criminal Investigation to conclude to provide essential information. We want to help you achieve the best outcome in your case and will advise you on time frames appropriate to your case.
Can you make a ‘No Win No Fee’ fee medical negligence claim?
The cost is most likely a worry to you in trying to take a medical negligence claim, but as we operate our cases on ‘No Win No Fee’ funding, it means there’ll be no financial risk to you. A ‘No Win No Fee’ fee agreement is a way of pursuing a medical negligence compensation claim with no legal fees to pay upfront and a percentage deduction being made at the end of the claim. The percentage is agreed with you before the claim is started. The availability of no win no fee is subject to your claim being assessed and advice given as to prospects.
If you have legal expense insurance which was in place at the time that you were injured by medical negligence, your legal expense insurance policy might help with funding their claim. If you have legal expense insurance, you should let us know as soon as you are considering making a claim.
We believe it is important that you have the ability to access the acknowledgment, compensations and answers that a medical negligence claim can often provide. You can read more about our fees in our Guide. We do not offer legal aid at Speir Buchan.
A medical examination will be needed to assess the nature, prognosis and extent of the injury. If you have suffered multiple injuries or both physical and psychological injuries, we will need you to be examined by specialists in each area. This is important to make sure that your injuries are fully assessed and understood when we need to value your claim.
When you are asked to go for a medical appointment, we instruct the specialist and make the arrangements. We will provide details of the appointment and discuss the expert with you. The payment for the expert examination and subsequent report is, in most cases, met by us under your fee agreement with us. We ensure that all instructed experts have access to relevant documentation, medical records and are aware of the background. They will also have your statement that you gave us at the outset of your claim. The defender of your claim may also ask for you to be examined by their own medical expert. If that happens, we will discuss what this means for your claim.
Compensation for a medical negligence claim can vary widely depending on the specific circumstances of the case. It's important to consult with a qualified legal professional who specialises in medical negligence in Scotland for accurate and up-to-date information.
In Scotland, compensation for medical negligence claims are typically influenced by factors such as the severity of the injury, the impact on the individual's life, and the specific details of the case. Whilst the way in which we calculate damages follows certain mandatory principles and practises, the differences in our clients’ injuries, pre-injury lifestyles and post-injury needs means that no two claims will be the same.
The legal process for medical negligence claims in Scotland involves gathering evidence, obtaining expert opinions, and negotiating with the responsible party or their insurance company. If an agreement cannot be reached through negotiation, the case may proceed to court.
To determine the potential compensation, it is crucial to consult with a solicitor with experience of medical negligence. They can assess the details of your situation and provide guidance based on their expertise and knowledge of current laws and precedents.
Yes, and we understand the concerns that the injured party and those around them can have about claiming against the NHS. We discuss this in our separate guide on ‘What claiming against the NHS means’. If it would help to speak to us, please phone and we can answer questions you may have.
The NHS has a responsibility to provide a safe and acceptable level of care. If a patient is injured or their condition is made significantly worse as a result of negligent NHS care, the patient is entitled to explore a claim compensation.
Making a claim against the NHS does not affect the patient’s future NHS healthcare. The reality for many injured is the compensation can help meet the costs of care, therapies, equipment and home adaptations that are needed when an NHS mistake causes injury or disability that permanently affects the patient’s life.
No, your NHS treatment should not be affected simply because you are making a claim.
In Scotland, the limitation period for child personal injury claims is typically three years. However, the clock doesn’t start ticking until the child’s 16th birthday. This means that a child who has sustained an injury has until their 19th birthday to initiate a claim.
This extension recognises the vulnerability of children and ensures that they have adequate time to understand the impact of the injury and its consequences. It also allows for any long-term effects of the injury to become apparent, as some injuries may not fully manifest until years after or with development.
If a child under the age of 18 makes a claim for compensation for injuries caused by medical negligence, their claim is made on their behalf by a ‘litigation friend’. This is usually a parent or guardian. Instructions are taken from the ‘litigation friend’ but the child must be accounted for and part of proceedings as far as able. We work as a team and it is important that all parties feel included and engaged in the process of a claim. We must work in the best interests of the child and that is paramount in any claim.
Some important decisions, when being made for a child’s claim may require to be approved by the court.
Arrangements must also be made to safeguard the child or mentally incapable adult’s compensation, whether from an interim payment, lump sum settlement or agreed future payments. You can read more in our ‘Personal Injury Trust Guide’.
Yes, in Scotland, you can make a claim for medical negligence if someone has died as a result of negligent medical treatment.
The claim is typically pursued by the deceased representative on behalf of the estate. The family or representative must establish that the healthcare professional or institution breached their duty of care, and that this breach directly led to the death.
If the claim is for bereaved family members and dependants after medical negligence caused someone’s death, the claim must be made by the deceased’s personal representative (executor or administrator of their estate) on behalf of all who are entitled to compensation as a result of the death.
It's essential to consult with a solicitor who has expertise in medical negligence cases to assess the specific circumstances of the case, gather evidence, and guide you through the legal process.
You can read our ‘Guide to Making a Fatal Medical Negligence Claim’.
In some cases, where you require financial assistance to pay for any loss of earnings, care and related costs, we may discuss with you applying for something called an interim payment. You can read further about interim payments in our separate guide.
Our team are dedicated to helping those who have suffered due to medical negligence.
From the very beginning of your claim, we are here to help guide and support you, as we know medical negligence cases can be emotionally challenging. We are supportive and offer acknowledgement and guidance to help alleviate some of the stress and anxiety associated with pursuing a legal claim.
Our team understand the legal complexities, providing guidance tailored to your specific situation. We can evaluate the strength of your case by reviewing medical records, consulting with our medical experts, and we can assess the evidence to determine if there are grounds for a medical negligence claim and pursue rigorously.
This guide is not a substitute for professional legal advice. Always consult with a qualified solicitor to discuss the specifics of your case.
Connect with a Speir Buchan expert today
