Medical Negligence

WellChild and Irwin Mitchell share a vision to help build stronger communities. We have teamed up to create a legal section for the WellChild Information Hub. This article on Medical Negligence is part of a series of legal articles aimed at families with children who have complex medical needs.

For a parent carer of a child or young person with complex medical needs, there can be a heavy reliance on health services working with you to enable your child to thrive.

In most cases, the healthcare system will be able to meet a child’s healthcare needs. However, for children needing specialised medical care there may be several different healthcare professionals involved, a complex medicine regime, and the need for the child to have regular tests and monitoring.

In these circumstances where there is so much to do and so much to keep track of, children can be particularly vulnerable to errors and oversights in their treatment. Sadly, if mistakes do arise, they can lead to injury or a worsening in a child’s health, and the stakes are even higher for a child who was already navigating health challenges.

This article will cover what medical negligence looks like for children with complex medical needs. It will also summarise what a medical negligence claim involves and where to get further information and advice.

What is medical negligence?

Medical negligence occurs when doctors or other health professionals make mistakes, leading to an existing health condition being made worse or an injury being caused. There are a number of ways that medical negligence can happen, such as health professionals failing to reach the correct diagnosis, providing incorrect treatment, or making mistakes during surgery.

As a parent carer, you are entitled to expect that your child receives a reasonable standard of care from their medical professionals. For a medical negligence claim to be successful, there is a two-part test that needs to be satisfied:

1. You must be able to prove that the care provided to your child has been ‘substandard’. Unfortunately, we do not have the right to excellent or gold standard healthcare, but rather a “reasonable standard”. This reasonable standard is decided by independent medical experts.
2. You must be able to prove that the substandard care provided to your child has ‘more likely than not’ been the cause of their injury or made their condition worse.

To find out more about medical negligence and to read more answers to frequently asked questions, Irwin Mitchell LLP has provided a guide page here.

What are examples of medical negligence for children with complex medical needs?

Here are some examples of medical negligence for children with complex medical needs. This is not an exhaustive list, but these examples may help you to identify if your child has been a victim of medical negligence.

Are there any time limits for bringing a claim for medical negligence on behalf of my child?

The time limit for starting a medical negligence claim doesn’t apply to under 18s. However, once the child turns 18, a claim must usually be made within three years. Therefore if your child was injured before the age of 18, the deadline for bringing a medical negligence claim would be their 21^st birthday.

If the injured child lacks capacity to make their own decisions on reaching the age of 18 then there may be no time limit for a medical negligence claim being brought on their behalf. The test for capacity is complicated and if you think that it might apply in your child’s case then you should seek further legal advice from a solicitor who specialises in medical negligence. You can read more information about the test for capacity in our Deputyships and Lasting Powers of Attorney article.

Can I make a complaint about my child’s treatment whilst also bringing a medical negligence claim?

Yes, the rules that govern NHS complaints allow the two processes to run at the same time. Read Irwin Mitchell LLP’s complaints guide for more information and to download template letters to help you start the complaint process.

What happens when a medical negligence claim is brought?

Step 1: Contacting a Solicitor

If you believe that your child has been injured and that this may have been because of substandard medical care, the first step is to contact a solicitor who specialises in medical negligence.

Step 2: Gathering the information and making a report

If the solicitor can proceed with a claim on your child’s behalf, they will investigate your child’s case thoroughly by obtaining copies of:

• relevant medical records
• witness statements
• relevant documents from the healthcare provider
• other relevant details about your child’s injury and on-going requirements

Once this information has been obtained, the solicitor will instruct one or more independent medical professionals who also work as medico-legal experts. These experts will review the information provided and will then prepare a report giving their opinion on the standard of care that your child received and whether their injury could have been avoided.

Step 3: Setting out the allegations to the healthcare provider

If the experts are confident that you have grounds to pursue a claim on behalf of your child against those who treated them, your solicitor will write to the healthcare provider setting out the allegations about the care that your child received.

Step 4: Going to court

The vast majority of cases are settled before they go to court. However, if your child’s case is one of the few that is to be decided by a judge you will be supported through that process by your solicitor.

Step 5: Receiving compensation

If a medical negligence claim is ultimately successful, your child would be entitled to compensation for their injury and losses resulting from the negligence.

How much compensation will my child be entitled to?

What does the amount of compensation depend on?

The amount of compensation that your child receives will depend on:

• how seriously they have been injured by the medical error made
• how that injury has affected their life
• what additional support, medical care, or therapies your child is now likely to need because of their injury

Your child may already have received daily care support, but if the level of care required has now increased because of their negligently caused injury then that additional care may form part of the compensation claim.

What will my child recieve?

The compensation award will be made up of different losses. Depending on your child’s case, they may be entitled to:

• a sum of money to acknowledge the fact of their injury and any ongoing impact the injury has on their day-to-day life
• compensation for additional care and assistance that they have required because of their injury and will require in the future
• the costs of any aids or adaptations in their home or transportation which are now needed because of their injury
• privately funded costs of treatment or therapies to support their injury rehabilitation

It is important to bear in mind that when looking at the compensation due to you child, the Court will focus on the individual situation for your particular child and what is required to put them back, as far as possible, in the position that they would have been in if the negligence had not taken place.

I live in Scotland or Northern Ireland

The information in this article is relevant to residents in England and Wales.

Scotland

There are several differences if you live in Scotland. We recommend that you contact a specialist medical negligence solicitor based in Scotland for more information.

Action Against Medical Accidents (AVMA) or The Association of Personal Injury Lawyers (APIL) will be able to assist with specialist medical negligence solicitors practising in Scotland.

Northern Ireland

There are several differences if you live in Northern Ireland. We recommend that you contact a specialist medical negligence solicitor based in Northern Ireland for more information.

The Association of Personal Injury Lawyers (APIL) will be able to assist with specialist medical negligence solicitors practising in Northern Ireland.

The information in this article was correct at the time of publishing but may be subject to change

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