Proving medical negligence.
Solicitor Clarissa Ellerington looks at, ‘How to prove medical negligence.’
When preparing to make a clinical negligence claim, one of the most common and important questions clients ask is: ‘What information or evidence can I provide to support my case?’
The answer will always depend on the specific facts of the claim and your particular circumstances. No two cases are identical, and what is crucial evidence in one claim might be irrelevant in another. However, some general principles and examples can help claimants start gathering and preserving the right information from the outset.
Why is evidence so important in a medical negligence claim?
In any legal claim, the outcome often depends on the strength and reliability of the evidence presented. A well-prepared case supported by clear, credible documentation can make the difference between success and failure. Sometimes, cases are won because of a single piece of evidence, particularly if it is contemporaneous, such as a text message or email sent at the time of the event, rather than a witness statement prepared many months or even years later.
To succeed in a medical negligence claim you must be able to provide evidence to support the allegations that are being made and satisfy the legal requirements, particularly with regard to demonstrating there has been a breach of duty and that harm has been suffered as a direct consequence of that breach.
Claimants will also need evidence to prove the extent of the harm they have suffered, and their claim for financial losses.
Solicitors will obtain some of the evidence that will be required, such as reports from expert witnesses, witness statements, and medical records. But there are some types of evidence that will be the claimant’s responsibility.
What types of evidence will a claimant need to support their medical negligence claim?
When thinking about supporting your claim for clinical negligence, it helps to take stock of the evidence you already have. Even something that may seem minor or unrelated at first glance could prove pivotal to the success of the claim. Examples of useful evidence include:
- Receipts and invoices
These can help demonstrate any financial transactions, purchases, or services that are relevant to your clinical negligence claim. Your solicitor can use this information to recover any financial losses you have incurred as a result of the negligence.
- Payslips and Bank Statements
You should retain any payslips and bank statements from the time of the negligence onwards, as these are important in supporting any claim for loss of earnings.
- Text messages, emails, letters, and social media messages
Keep any communication between you and the defendant, as well as any communication with a third party that may be relevant to the negligence or injuries sustained. Whether these are formal letters, casual text messages, or direct messages on social media, they can provide valuable insight into what was said and done at the time.
- Photographs and videos
If you have taken photographs, where possible, these should be clearly marked with the date and time they were taken. If necessary, label important details (for example, who took the photograph, indicate the left or right side if it is unclear, and the location of the injury). Photographs and videos can provide powerful visual evidence.
- Contemporaneous notes or records
If you kept a diary, made notes, or recorded observations or follow-up meetings, these can add weight to your version of events.
We strongly recommend that you keep hold of these documents until the conclusion of the claim.
The duty to preserve evidence
In any medical negligence claim it is essential to understand that once a you have relevant documents or evidence in your possession, you must preserve them. Whether a document helps or harms your case, it must not be destroyed or altered. All relevant material is potentially disclosable to the other party during the legal process.
Destroying or withholding evidence can seriously damage your credibility and your case. It could also expose you to legal penalties.
What to do with the evidence
To help you navigate the documents and know what to do when bringing a medical negligence claim, we recommend that you:
- Gather what you have: Don’t worry about whether something seems important — let your lawyer review everything.
- Keep it safe: Store physical documents securely, and backup digital material.
- Stay organised: keep a record of the evidence you have, make a note of dates, times etc.
Your legal team will assess the relevance of the evidence and guide you on what is needed to support your claim. The key is to provide them with as complete a picture as possible so they can build a strong case on your behalf.
Book your free medical evidence consultation
If you would like to bring a claim and require further guidance on how to prove medical negligence then contact us for a free consultation.
