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Reasons for taking legal action

My doctor has made an apology for how things have turned out for me, so surely I am bound to win my case?
No.  Just because your doctor has said sorry or an apology was made doesn't necessarily mean that you will win your case.   In fact doctors are expected to express regret in certain circumstances and it is not necessarily the case that this is the same as an admission of liability.

To succeed, you will have to prove in court that:

  • the doctor owed you a duty of care (it is unlikely that this will be in dispute)
  • that they breached that duty by providing you with unacceptable care and
  • that the breach caused damage to you. 
  • The burden of proving the case is on you.  The importance of this feature can not be understated.  It is fairly unusual that a case is so blatant that no arguments at all can be made on the issues.

    The standard of proof is what the courts call “the balance of probability” (by comparison, many people will know that the criminal standard is “beyond reasonable doubt” – a higher standard).  This means that you have to prove what probably happened and that it probably caused you injury.  The standard is sometimes expressed in percentage terms as more than 50%, that is, something which tips the balance in your favour.

    You have to prove each element of your case and to do so, expert medical evidence, from independent medical experts experienced in the medical specialities relevant to your case, will be vital.  Your experts must each provide an opinion on whether they are able to support your case in Court.  If the case is to be contested at a trial the defendant hospital or doctor (or his Defence Organisation/solicitor) will be expected to call expert evidence to counter your case.

    Most (over 90%) of the cases we investigate and are able to proceed with result in a damages payment.

I feel so angry with the doctor who caused this injury, will I be suing him personally?
Not necessarily.  If the doctor or other member of staff worked for an NHS hospital, you will sue the employing NHS Trust.  In the case of a private consultant, you will sue them personally.

You will also sue a GP personally, whether NHS or private. However the case will be managed by the doctor's defence organisation (a cross between a trade union and an insurance company), and they will pay any damages and costs.

If the doctor or other member of staff was employed by a private hospital, then you will sue the company that owns the private hospital which is responsible for the employee.  In recent years NHS care has been provided in private hospitals so that the issue needs special consideration.

In all these cases it is likely the doctor who caused your injury will be involved in giving evidence and thus will know about your case.  If appropriate he or she may be disciplined or offered retraining. You won't necessarily know this has happened.

Finally it is important to remember that it is not a good idea to litigate just because you are angry. The system of civil litigation focuses on compensating losses, not on punishing wrongdoing.  Costs are often a deciding factor.  These basic notions are easy to forget if you have been unlucky enough to suffer from an unexpected outcome during your medical care.  You should only decide to start legal proceedings once you are clear it is going to provide a tangible benefit to you.

I am still being treated by the same GP practice/hospital.  Will my treatment be affected as a result of my seeking compensation?  Can the GP/hospital refuse to treat me in the future?  Can I insist on being referred elsewhere?
The answer to these questions varies from case to case. 

Neither your GP nor the hospital have a right to refuse to treat you simply because you have made a complaint or are suing them. However you need to feel confident that you are getting the best treatment and it is possible that either you or your doctor will feel that it is not appropriate for you to continue to be treated by them because of the breakdown in the relationship between you. Doctors do react differently - you may need to be prepared for your doctor to suggest you go elsewhere. In addition you may not want to discuss issues potentially relevant to the litigation (such as whether you are fit to return to work) with the doctor who is your opponent. It may be easier for both of you for you to seek treatment elsewhere.

In the case of your GP, you can choose to see another member of the practice or register with a different practice. In the case of the hospital, you can be treated by a different doctor at the hospital or you can be referred elsewhere.

I am not interested in obtaining compensation but I want to take action against the doctors so that they are punished or struck off for their mistake and to stop them from injuring anyone else. How can I do this?
You can make a formal complaint to the General Medical Council (GMC), the governing body for medical practitioners, requesting that they investigate the case.  The GMC will review your complaint and decide whether they need more information and/or whether they wish to investigate it further.  Ultimately, if they consider the case warrants a disciplinary hearing, it is possible the offending doctor may be punished or struck off.  For further details, please see the GMC’s website.

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