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Clinical Negligence

Also known as: Medical Malpractice, Medical Negligence

Definition

Clinical negligence occurs when a healthcare provider breaches their legal duty of care to a patient through substandard treatment that directly causes harm, injury, or worsening of the patient's condition.

Understanding clinical negligence is essential for medical professionals planning their estates and managing professional liabilities, as outstanding claims can significantly impact estate value and beneficiary inheritance.

What Does Clinical Negligence Mean?

Under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, clinical negligence means "breach of a duty of care or trespass to the person committed in the course of the provision of clinical or medical services." To establish clinical negligence, three elements must be proven: (1) the healthcare provider owed a duty of care to the patient, (2) the provider breached that duty by delivering treatment below the standard a reasonably competent practitioner would provide (the Bolam test), and (3) the breach directly caused harm to the patient. Not every adverse medical outcome constitutes negligence—unfortunate results can occur despite excellent care, as medicine carries inherent risks and uncertainties.

Clinical negligence affects estates from two perspectives. For medical professionals, outstanding claims against deceased doctors become estate liabilities managed by executors. The GMC requires all practicing doctors to maintain adequate indemnity coverage—NHS doctors receive protection through NHS Resolution's Clinical Negligence Scheme for Trusts (CNST) for NHS work, but must arrange separate coverage through Medical Defence Organizations (MDOs) for private practice, GMC fitness to practice proceedings, and other professional matters. When a doctor dies, their executor must notify NHS Resolution and any MDOs, as pending claims affect estate valuation and distribution. For patients and families, the Law Reform (Miscellaneous Provisions) Act 1934 allows clinical negligence claims to continue after the patient's death. Personal representatives (executors or administrators) pursue claims on behalf of the estate, and if death occurred within the three-year limitation period, the clock resets, providing another three years from the date of death to commence proceedings. Successful claims add compensation to the estate—covering pain and suffering before death, funeral expenses, and loss of dependency—which is then distributed according to the will or intestacy rules.

Proving clinical negligence requires expert medical evidence demonstrating that treatment fell below acceptable standards. NHS Resolution reported £3.13 billion paid in clinical negligence compensation during 2024/25, covering over 13,000 claims annually. Common negligence types include misdiagnosis, surgical errors, medication mistakes, delayed treatment, and failure to obtain informed consent. The majority of cases (83% in 2024/25) settle without litigation through negotiation and dispute resolution. Generally, claims must be brought within three years of the incident or the date the patient became aware of harm, though limitation periods have important exceptions for minors and those lacking capacity. Dr. Sarah Patel's executor, managing her estate after sudden death, discovered a pending negligence claim from a 2021 surgery. NHS Resolution handled the defense, but the £45,000 potential liability had to be reserved before distributing the estate—demonstrating how clinical negligence claims directly impact inheritance timing and amounts.

Common Questions

"What is the difference between clinical negligence and medical malpractice?" Clinical negligence and medical malpractice are the same concept—both refer to substandard healthcare causing patient harm. "Clinical negligence" or "medical negligence" is the term used in UK legal systems, while "medical malpractice" is the American equivalent. All three terms describe situations where healthcare providers breach their duty of care, causing injury or worsening a patient's condition.

"Can clinical negligence claims continue after the patient dies?" Yes, clinical negligence claims can continue after a patient's death under the Law Reform (Miscellaneous Provisions) Act 1934. The deceased's personal representative (executor or administrator) must continue the claim on behalf of the estate. If the death occurred within the three-year limitation period, the clock resets, giving the representative another three years from the date of death to commence proceedings.

"Do medical professionals need special insurance for clinical negligence?" Yes, UK doctors are legally required to have adequate clinical negligence indemnity coverage. NHS doctors receive coverage through NHS Resolution's Clinical Negligence Scheme for Trusts (CNST), but this only covers NHS work. Doctors must arrange separate indemnity through Medical Defence Organizations (MDOs) for private work, GMC fitness to practice proceedings, and non-clinical matters.

Common Misconceptions

Myth: Every bad medical outcome is clinical negligence.

Reality: Not every adverse outcome constitutes negligence. Clinical negligence only occurs when treatment falls below the standard a reasonably competent practitioner would provide, AND that substandard care directly causes harm. Unfortunate outcomes can occur despite excellent care—medicine is inherently uncertain, and some treatments carry unavoidable risks.

Myth: Clinical negligence claims always take many years to resolve.

Reality: While some complex cases take years (particularly those requiring extensive expert evidence or involving catastrophic injuries), many claims settle much faster. NHS Resolution reports that 83% of cases are resolved out of court through negotiation and settlement, often within 12-24 months. Simple cases with clear liability may settle within months.

  • Medical Indemnity Insurance: The financial protection mechanism against clinical negligence claims that medical professionals need for estate planning purposes.
  • Medical Defence Organization: Organizations providing legal representation, expert advice, and indemnity coverage for clinical negligence claims beyond NHS schemes.
  • Liabilities: Outstanding clinical negligence claims against deceased doctors become estate liabilities that executors must manage before distribution.
  • Estate: Can bring clinical negligence claims when patients die, or defend against them when doctors die, affecting estate valuation and inheritance.

Need Help with Your Will?

If you're a medical professional, understanding clinical negligence is essential for estate planning, particularly when considering indemnity coverage and potential liabilities. Outstanding claims can significantly affect what you leave to beneficiaries, making proper will planning critical.

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Legal Disclaimer:

This article provides general information only and does not constitute legal or financial advice. WUHLD is not a law firm and does not provide legal advice. Laws and guidance change and their application depends on your circumstances. For advice about your situation, consult a qualified solicitor or regulated professional. Unless stated otherwise, information relates to England and Wales.