By Medical Negligence Paralegal, Emily Taylor
If you have been injured as a result of medical negligence, then you may be entitled to claim compensation for your injuries. But how can you prove that the negligence occurred and that it directly contributed to your injuries? We explain how to prove this and what evidence you will need to support your medical negligence claim.
What Needs to be Proven and by Who?
In order to support your medical negligence claim and secure compensation, it is necessary to prove all of the following:
- You received unacceptable care (breach of duty)
- You suffered pain, suffering, injury, loss or damage
- The pain, suffering, injury, loss or damage was caused by the unacceptable care (causation)
The burden is on the injured person (the Claimant) to prove their medical negligence case and not on the Defendant to disprove it. Unless you can prove all of the above your claim will not succeed.
How Can You Prove Your Claim?
An injured person can rely on a number of different sources of evidence to prove their medical negligence claim, as follows...
1. Medical Records
Under the General Data Protection Regulation, Regulation (EU) 2016/679, and the Data Protection Act 2018, everybody is entitled to be provided with copies of their medical records free of charge and within 1 month of a request.
Medical records are written at the time of treatment, which in most cases will be before there is any knowledge of injury. Medical professionals are bound by a duty of candour to produce honest records. Consequently, medical records are usually seen as a reliable account of the treatment received and will be a key part of the evidence collated to prove a medical negligence claim.
A Medical Negligence Solicitor can assess your medical records and use them to identify and investigate any treatment that may constitute a breach of duty.
2. Witness Statements
Witness statements can be taken from the injured person, their family, friends and medical professionals. Witness statements set out the recollection of each witness of the events surrounding the alleged negligence.
For the injured party, their witness statement provides the opportunity to explain what has happened and how it now effects their day to day life. Witness statements of friends and family can be used as evidence to prove that the injured person has needed additional support following the negligent treatment.
If the witness was present during appointments, examinations and consultations, their statement can also be used to support the injured person's recollection of their medical treatment.
Witness statements can even be taken from independent medical professionals who may have been involved in the injured person's care, as long as the independent medical professional agrees to this. For example, if an injured person had a poor outcome following surgery at one hospital and then subsequently underwent a revision procedure at a second hospital, the second surgeon may be prepared to provide a witness statement detailing what they found during the revision procedure.
3. Medical Expert Reports
If the Defendant does not admit that the care they provided was unacceptable and caused the injured person's injuries, it is for the injured person to prove this. This can be done by obtaining reports from independent medical experts. For the claim to proceed, the experts must conclude that:
- The standard of care provided fell below the level to be expected of a reasonably skilled and competent practitioner in the relevant field of medicine at the time in question. It is a defence to any claim if there is a responsible body of medical opinion who would have acted in the same way.
- The unacceptable care was the probable cause of the injury, loss and/or damage suffered.
4. Financial Evidence
Medical negligence compensation is intended to put the injured person back in the position they would have been in if the negligence had not happened. As such, part of the total compensation award will be made up of any past and likely future financial losses and expenses caused by the negligence (e.g. loss of earnings, medical expenses etc.).
In order to claim back any losses or expenses you must prove that you have incurred these. Proof can be provided by way of payslips, bank statements, invoices, receipts etc.
NHS Complaints and Internal Investigations
If a complaint has been made to a Defendant within 12 months of the alleged medical negligence, the Defendant is obliged to investigate the complaint and provide a written response.
As the injured person is the subject of the investigation, they are able to request copies of all the data created by the investigation. This might include internal and external correspondence, witness statements, meeting notes, clinician comments etc. This documentation can be extremely helpful when investigating an injured person's medical negligence claim.
Most Medical Negligence claims can be dealt with on a No Win No Fee basis.