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How to make a claim for medical negligence?
Initially, you will need to obtain and collate all relevant medical records and notes for the entire treatment period from the medical professional or institution that treated you. Next, you have to find an independent medical expert, give him/her the records, and ask the expert to comment on whether or not medical negligence was involved.
You will need the following information:
- contact details of the person potentially liable for the claim for medical negligence;
- a chronology of all of the events that has led you to think you have grounds for a claim for medical negligence;
- an account of the actual treatment given and any ill effects that resulted from it;
- documentation of any complaint you may have raised with the medical institution or practitioner;
- any other supporting documentation or details.
For a medical negligence claim to be successful, broadly speaking it is important to establish that the errors that occurred during the medical treatment would not reasonably have occurred if the same procedure had been conducted by another competent medical professional. It needs to be proved that the treatment fell below acceptable standards and that the treatment has caused harm or injury to the patient.
If you are not sure whether the treatment you have received would potentially warrant a claim for compensation based on medical negligence, here is a non-exhaustive list of common events that may justify closer scrutiny:
- A requirement for surgery that was not at first anticipated
- A bone fracture that has been missed
- Infections (acquired while in hospital)
- Harm brought on by incorrectly prescribed medicine
- A permanent disability
- An illness progressing to a stage where treatment is no longer an option
- An ongoing pain
- A recovery period that is longer than the expected period advised by the medical practitioner
- Inability to work or care for oneself
- Mistakes during cosmetic surgery
- Awareness during anaesthesia
- Failed sterilisation or vasectomy cases
- Brain injury or loss of memory
- Having to re-attend A&E shortly after having been discharged
- Cancer misdiagnosis
- Surgical error which causes permanent damage to the body
If, after considering all of the above, it seems that medical negligence could be established, prior to the commencement of action for medical negligence it is advisable that you send a written complaint to the relevant medical professional or institution detailing your concerns in full. If you receive no response or settlement offer, you may consider contacting a specialist medical negligence solicitor for assistance.
If the amount of compensation that you are claiming is over HK$3,000,000, you must start your action in the Court of First Instance of the High Court. Claims for an amount under HK$3,000,000 can be instituted in the District Court. Claims under HK$75,000 can be pursued in the Small Claims Tribunal.
Since medical negligence constitutes a form of personal injury, for more details on the legal proceedings involved, please refer to the “Personal Injuries” Section of the CLIC website. A medical negligence action is regarded as a personal injury action and therefore must be commenced within three years of the date when “the cause of action accrued” or the date of the claimant’s actual or constructive “knowledge” of the injury.