What is the purpose of a medical negligence claim?

The purpose of medical negligence litigation is to compensate those who have suffered avoidable injury as a result of substandard medical treatment.

It is not a system designed to punish healthcare professionals. Indeed, a court’s order to compensate should not be viewed as a punishment. Instead, it is an order to make good the harm that has been caused.

The objective of compensatory damages is to place the person who has suffered an injury, so far as money is able to do so, in the same position as they would have been had they not been harmed. An award of compensation is not a “windfall” but a method of making good the damage suffered.

Broadly, the compensation can be split into two heads of award in a medical negligence claim:

• general damages: pain, suffering and loss of amenity (PSLA)
• special damages: losses and expenses

An award for PSLA aims to compensate the physical and psychological injuries suffered by the individual, together with a reasonable loss of enjoyment of life. Judicial College Guidelines have been developed to provide the framework for the assessment of general damages.

Special damages seek to compensate the financial losses resulting from the person’s injuries. They cover both past losses (those incurred in the period between the negligence and the claim settling) and future losses. Future losses may include, for example, future loss of earnings, medical expenses and care costs.

The court will always consider whether the claimed costs are reasonable and proportionate.

Although compensation may be the ultimate goal of the litigation process, it does not need to be the motivation behind pursuing a claim. In fact, the decision to pursue a claim for medical negligence often stems from a desire to get answers about what went wrong with the medical treatment received.

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