About Medical Law & Patients Rights

About Medical Law & Patients Rights

About Medical Law & Patients Rights

Millions of people are treated by doctors, dentists, nurses and other medical professionals every year both privately and under the NHS. Most of this care is of the highest quality.

Unfortunately, a small percentage of those patients treated every year suffer because of a medical accident, through injuries caused by medical devices or through the consequences of resourcing decisions about the availability of high cost treatments or because the Court has to be asked to make a decision where a patient cannot.

Where any of these things happen, Irwin Mitchell’s Medical Law and Patients Rights team can help you.

Irwin Mitchell is one of the country’s leading law firms with a national reputation in the field of medical law and patient’s rights.

How we can help your medical negligence claim

You might need the help of our specialist teams of lawyers when you are considering:

Claims for clinical negligence


Breach of contract claims against private hospitals

Medical negligence claims involving children

Death from surgical treatment inquests

Review of NHS Trusts or Department of Health decisions

Defective medical product liability claims

Application for treatment decisions

Public inquiries into clinical negligence

Contribution to policy consultations

Claims for clinical negligence

We can help you with your claims for clinical negligence arising from:

  • Failure to diagnose and/or treat a treatable condition
  • Failed consent to surgery
  • Errors in surgery and radiology
  • Birth injuries arising from obstetric failures

Every health professional owes a duty of care to their patients. A medical accident may happen because of a breach of that duty. In assessing competence the law does not seek perfection, but a patient is entitled to expect reasonable care. If doctors or other health professionals treated you acted reasonably in all the circumstances then you will have no claim.

However, if the treatment you received fell short of what you were reasonably entitled to expect, there may have been a breach of duty of care leading to your injury. That injury may affect your health temporarily, or permanently, and may have an effect of your livelihood or level of independence.

As well as delivering a reasonable standard of healthcare doctors are also obliged to ensure that you properly understand all the risks associated with any treatment, including surgery, so that you can give your informed consent to that treatment. If you are not given appropriate information then your treating doctor may be in breach of this duty to you and your consent to the treatment may be invalidated.

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Breach of contract claims against private hospitals

These actions will arise in similar circumstances to claims against NHS hospitals or Trusts but will also include breach of contract claims where you have paid for medical care and the contract has failed because of the doctor’s negligence. They are usually in relation to private medical and surgical treatment.

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Medical negligence claims involving children

It may be that a medical accident has happened to a child. We understand that you will feel a responsibility to find out how that accident happened.

Children can bring claims in their own right, when parents act as their representative, or “Litigation Friend”. This enables you to instruct a solicitor on your child’s behalf.

Unlike adults, most children will automatically be eligible for Public Funding provided by the Legal Services Commission.

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Death from surgical treatment inquests

If a member of your family dies whilst receiving treatment, or as a result of a failure to provide necessary medical attention, then an inquest be held. You should ask for legal advice before the inquest.

The scope of inquests is traditionally very narrow but recent developments in Human Rights Law mean that the Inquest is of increasing importance in finding out why someone may have died unexpectedly in a hospital. In many cases the state is obliged by Article 2 of the European Convention on Human Rights to carry out an independent inquiry where it is possible that reasonable steps were not taken to prevent a death; in some cases the Coroner’s inquest may satisfy this obligation.

Where a hospital death arises not out of a single neglectful act, but as a result of an inadequate system then it is possible that similar deaths may occur in the future. In such a case you will no doubt be concerned not only about a member of your family who has died but for others who may be affected later on. In such cases an inquest can result in changes to systems which improve healthcare in the future for all patients.

Inquests also play an important role in investigating the deaths of patients who are detailed in hospital under the Mental Health Acts.

Specialist lawyers will usually be prepared to advise you free of charge in the first instance so you should not be concerned about the cost of taking advice in advance of any Coroner’s Court hearing.

Inquests are public hearings and often attract the attention of the press and broadcast media. You should consider instructing a solicitor familiar with handling the media in order to ensure that your interests are properly protected.

A damages claim for bereavement may be brought after the inquest, depending on what evidence has come to light. Such claims may include claims for breaches of the deceased’s Human Rights. It may be possible for family members to bring claims for loss of economic dependency upon the deceased.

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Review of NHS Trusts or Department of Health decisions

Every NHS Trusts has a budget from which it is allocated money to provide essential medical services to the community it serves. One of the effects of this localised decision making can be that resources are differently allocated to achieve different healthcare aims in different places. Occasionally, this can mean that expensive new treatments may be available within one Trust area but not in neighbouring Trusts. This kind of ‘postcode lottery’ can affect available treatment in a way that is manifestly unfair. Where there is such unfairness, the High Court can intervene to force the Trust to think again about the way in which it applies its resources.

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Defective medical product liability claims

Not all medical accidents happen as a result of human failing. Sometimes a medical product or device (such as a drug, a cataract lens implant or a heart valve) may cause injury because it is defective. In such cases you may have a statutory right to compensation under the Consumer Protection Act 1987. Such claims are complex and should be handled by lawyers with experience of this largely uncharted legislation. Some of these claims are conducted as group actions.

We have experience of a wide range of product liability litigation, including:

  • Blood products
  • Human Growth Hormone 
  • Heart Valves
  • Breast Implants
  • Drugs
  • Cataract Lens Implants
  • Hip Replacements
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Application for treatment decisions

Where a patient is either temporarily or permanently unable to make s decision about the giving or withholding of treatment, the High Court Family Division is often asked to make a decision for the patient, either by the treating doctors or by the patient’s family. These cases often arise at short notice and need to be dealt with by experienced practitioners.

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Public inquiries into clinical negligence

Sometimes medical issues such as public health system failures, maltreatment of the elderly or failing services give rise to widespread public concern going beyond the individual cases themselves.

If deaths have resulted the Coroner may become involved but other cases other forms of inquiry may take place. These inquiries may be major undertakings sitting in public headed by a High Court Judge and lasting several years or more local inquiries sitting in private and over a shorter period.

The establishment of an inquiry is an acknowledgement that something has gone wrong which needs to be addressed so as to restore public confidence and to generate policy recommendations to ensure that failures are not repeated.

We have extensive experience of dealing with inquiries such as:

  • The BSE Inquiry
  • The Avonside Inquiry (Birmingham and Solihull Mental Health NHS Trust)
  • The Kerr/Haslam Inquiry

If you are involved in a case in which an inquiry is to be held or where you believe that one should be held you need to seek specialist advice. We are one of the few firms of solicitors able to give advice on these issues.

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Contribution to policy consultations

Contribution to policy consultations on behalf of interested groups issued by NICE or the Department of Health, Medical and Health Regulatory Agency, Human Fertility and Embryology Authority and DEFRA.

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