Medical negligence is substandard care provided by health professionals. To have a claim for medical negligence, the substandard care must result in avoidable harm. This applies to care provided in the NHS or the private sector.
There are 4 elements to the test for medical negligence:
1. Duty of Care.
This is the most straightforward part of the test to establish, as all health professionals (doctors, nurses, surgeons, midwives, dentists, physiotherapists, opticians, etc.) owe a duty of care to their patients.
2. Breach of Duty of Care.
Was the care provided below the standard expected of a responsible body of similar professionals, i.e. was it unacceptable? Health professionals are expected to exercise the skill of a competent health professional in their field.
3. Causation
Did the breach of duty of care cause an avoidable injury?
4. Injury
What was the extent of the avoidable injury?
To succeed in a claim for medical negligence, you must prove that there was a breach of duty and that it caused an injury that you would otherwise have avoided.
Parts 2 – 4 of the test for medical negligence are established with the help of experts. These are known as medico-legal experts.
Which Is The Correct Expert Discipline To Instruct For My Case?
The medical expert that you instruct to give an opinion in your case must be from the relevant speciality that there are concerns about, e.g. if there are concerns about the care provided by an orthopaedic surgeon, then the expert instructed should also be an orthopaedic surgeon. It would be inappropriate for a gynecological expert to comment on the care provided by an orthopaedic surgeon.
There can be overlaps in the experience of experts if some of the work that they do is similar, such as between a neurosurgeon and spinal surgeon, but it is sensible to try to find an expert who is in the same discipline as the one that is being investigated.
It may also be necessary to find an expert who has the correct speciality within a certain field of medicine. For example, an orthopaedic surgeon who specialises in upper limbs would not be suitable to comment on a case that concerns an ankle fracture.
Should Experts Be Independent?
The expert instructed must be completely independent. They must not have worked for any hospital trusts involved in your care, nor with any of the health professionals involved.
A conflict check is always performed before an expert is instructed.
What Should I Look For In An Expert?
It is important to instruct an expert who has experience in the area that they will be asked to comment on. For example, if you need to instruct a neurosurgeon to comment on the standard of surgery performed to remove a brain tumour, but the expert surgeon has not performed that particular procedure (or not many of them), then they may not be appropriate.
Recent experience is also important. If there are concerns about advice or treatment given in A&E, then you should instruct an expert who currently works in A&E or was working in A&E at the time of the events in question. If the expert that you are considering has not worked in A&E for several years, then they will probably not be appropriate.
If an expert is retired from clinical practice when you need to get a report, it does not mean that they will always be unsuitable for your case, but it is important to consider what issues you need them to comment on and whether their opinion might hold less weight because they are no longer in clinical practice.
The expert’s experience in medico-legal cases is also something to consider. Ideally, an expert should prepare reports for Claimants and Defendants, and in a similar proportion. If an expert predominantly acts for one party only, then they could be criticised for being biased, i.e. Defendant or Claimant bias. It is also usually better to work with experts who have been preparing reports on medical negligence claims for a while, as they will have gained experience of their opinion being tested and challenged.
An expert’s reputation can also be important. Medical experts have been criticised in the past for a variety of reasons. Checking whether there have been any negative comments about the expert that you want to work with is a sensible precaution to take if you have never instructed them before.
How Do I Know Which Expert Is Best?
Solicitors who are experienced in medical negligence work with lots of different disciplines of experts.
If you have a claim for medical negligence, your solicitor will advise you regarding which expert is most suitable for your case.
Quote from author. Gemma Lewis, Partner and Specialist Medical Negligence Solicitor “Instructing the right expert is crucial to a medical negligence claim. At MDS, we do everything that we can to ensure that we find the best experts for our clients’ cases.”
MDS is a specialist medical negligence law firm. We specialise in claims involving cancer, maternity, and cauda equina syndrome. Our expert solicitors represent clients all around England and Wales, and we are dedicated to helping people who have been injured by medical negligence.
Our solicitors have extensive experience of representing clients and their families whose lives have been affected by medical negligence. Click here to read more about how we can help you, and here to read our clients’ stories.
If you are concerned about any care that you or a member of your family has received, please contact our experienced team on 0116 254 7456 or email: enquiries@moosaduke.com. You can also enquire online by clicking here.
