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Title: Fracture missed at A&E - medical neligence?

Date: 08 May 2014

Fracture not spotted at A&E

I had an accident last summer when I was overtaking a tractor which turned right without indicating – he had not connected the wires to his trailer so I couldn’t have seen the indicator even if he had indicated. He was finally prosecuted last month and liability has now been admitted by NFU. But the doctor my solicitors have instructed has confirmed what I know - that A&E missed a fracture and the doctor hinted strongly at sub-standard treatment by the NHS. Can I sue the NHS for this mistake as it led to a prolonged recovery or does NFU have to pay for this as well?

Thomas Priest, Newquay

Answer

You have two choices although the approach will largely be dictated by how the NFU decides to deal with it. Where there is clinical negligence and it is not overly significant from a financial perspective, the motor insurer will often take a pragmatic view and not take an issue and will deal with the additional compensation. However the NFU would be perfectly within its right to deny liability for the additional pain, suffering and loss of amenity and related financial losses. If they do this then you can pursue a claim against the Trust for the implications of the Trust’s negligence over and above what you would have suffered in any event as a result of the accident. So you will then be advancing two claims, one for the losses flowing from the accident and a separate one for the increased impact of the negligence of the NHS.

For the NHS claim you must show that there was a duty of care owed which in medical claims there always is. You then need to show that the duty has been breached which means the doctor must have fallen below a standard of a responsible body of medical practitioners – if so this is negligence. This shouldn’t be too much of a hurdle as missing a fracture does hint strongly at negligence. Then you need to show that the negligence led to the harm which in your case is obvious.

You will need expert medical evidence to support your clinical negligence claim and it may be cost effective for the same surgeon who reported in your bike accident claim to do this report. You need to instruct a specialist NHS lawyer.

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