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What are the Best Tips for Filing Clinical Negligence Claims?

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  • Written By: Dale Marshall
  • Edited By: Kristen Osborne
  • Last Modified Date: 11 September 2019
  • Copyright Protected:
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    Conjecture Corporation
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In order to file a successful clinical negligence claim, the plaintiff must be able to prove four essential facts: that she had a professional relationship with the medical professional, that the professional was negligent, that she was harmed by that negligence, and that quantifiable damages resulted. Since negligence suits of any sort are complex and technical in nature, the first step for anyone who suspects she's the victim of negligence is to hire a good negligence attorney. The attorney will establish in the initial interview whether these four points can be established, and if it appears they cannot, will likely advise the client that she does not have a viable case.

Clinical negligence, or medical negligence as it’s more commonly known in the United States, occurs when a medical professional acts without professional diligence in performing his duties. This means that as a professional, he’s been trained to perform his job in a certain manner, displaying a level of competence far above that expected of a lay person. When he doesn’t adhere to those standards, he’s considered to have acted negligently, and when that negligence harms a patient, that person is entitled to file a claim of clinical negligence.

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Proving the existence of a professional relationship is relatively easy, but proving negligence is often a challenge. This type of negligence is defined as the failure of a professionally trained and certified person to act with the diligence expected of a professional, and so the standard of diligence in such a case is defined by other professionals in the field. This means that in clinical negligence claims, other professionals would generally be called to testify that the defendant acted negligently. To help establish her claim, a plaintiff should write a contemporaneous description of the events she believes to have been negligent as soon as possible after they occur. Not only will this help to preserve her memory, but it will be an invaluable guide for the attorney.

The third requirement, proving that the plaintiff was injured by the professional’s negligence, is easy to prove if the injury is physical, but injuries such as “pain and suffering” are much more difficult to prove. Many jurisdictions won’t permit clinical negligence claims that allege pain and suffering without first proving physical injury. The fourth requirement, establishing damages, can be easily proven to the extent that actual damages are claimed, such as medical costs. When additional damages are claimed, though, such as punitive damages or pain and suffering damages, they’re much more difficult to prove satisfactorily.

Clinical negligence claims often don’t get litigated, but are settled between the defendant’s and the plaintiff’s attorneys. This often happens when the defendant acknowledges that the four requirements have been adequately met, and doesn’t want to risk a trial in which a jury might award damages far beyond what either party expects. In other cases, though, the defendant will elect to go to trial, either hoping that a trial will result in a lesser award or that the plaintiff’s case is weak enough that the court will decide it hasn’t been adequately proven.

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