Clinical Negligence — No Win No Fee
Clinical negligence (also known as medical negligence) occurs when a healthcare professional provides treatment that falls below an acceptable standard, causing injury. These claims can be pursued on a no win no fee basis, though they require careful expert assessment.
What Is the Legal Test for Clinical Negligence?
Direct Answer: A clinical negligence claim requires proving three elements: duty of care, breach of that duty (using the Bolam/Bolitho test — treatment fell below the standard of a responsible body of medical opinion), and causation. Most clinical negligence solicitors work on CFAs with no upfront fees.
To succeed in a clinical negligence claim, you must establish three elements: duty of care (which is rarely disputed), breach of duty, and causation. The breach is assessed against the Bolam test: whether the treatment fell below the standard accepted as proper by a responsible body of medical opinion. The Bolitho refinement requires that such opinion be capable of withstanding logical analysis.
NHS Resolution
Claims against the NHS in England are managed by NHS Resolution, an arm's-length body of the Department of Health and Social Care. NHS Resolution handles claims on behalf of NHS trusts and manages the Clinical Negligence Scheme for Trusts (CNST). It has a stated aim of resolving claims fairly and learning lessons to improve patient safety.
Common Clinical Negligence Claims
- Misdiagnosis or delayed diagnosis — failure to diagnose cancer, heart conditions, or infections
- Surgical errors — wrong-site surgery, retained instruments, nerve damage
- Birth injuries — cerebral palsy, Erb's palsy, hypoxic brain injury
- Medication errors — wrong drug, wrong dosage, adverse interactions
- Failure to obtain informed consent — Montgomery v Lanarkshire Health Board [2015]
- A&E failures — delayed treatment, failure to investigate
The Pre-Action Protocol
Before issuing proceedings, claimants must follow the Pre-Action Protocol for the Resolution of Clinical Disputes. This requires a letter of notification, a detailed letter of claim, and a response from the defendant. The protocol encourages early exchange of information and exploration of settlement, including through alternative dispute resolution.