In cases where a health care professional is accused of being negligent toward a patient under his/her care the burden of proving such malpractice is weighed heavily on the shoulders of the claimant's solicitor. There are many parts to substantiating a claim that a surgeon, doctor, physician, nurse or other medically trained professional has acted negligently, least of which is the actual injury caused. In many cases distinguishing between the pre-existing condition and the worsened state resulting from the alleged malpractice is incredibly difficult and, in most cases, opinionated. To prove that you have sustained actual harm from the treatment, (or non-treatment), by a health care worker you need the testimony of other health care professionals. Once the actual injury has been established you will need to prove that the injuries you received were the result of negligence. Not all worsened conditions or injuries post-treatment are the result of negligence. Many illnesses and physiological states bear their own risks and each person reacts differently to various forms of treatment for the exact same disorder. Surgery is invasive and with the number of variables involved success cannot always be guaranteed, therefore the fact you are not cured of an ailment is not necessarily proof that someone has been negligent in their duties. You must have expert witnesses, preferably from medical practitioners within the same field, that can state that they would not have performed the procedure or advised the treatment that resulted in your injuries.

You can pursue such a case yourself though there will be some cost upfront and if you are not medically or legally trained it may cause more stress that the final settlement is worth. Oftentimes, due to the complexity of most clinical negligence claims even law firms are less than eager to take on such cases and claimants can be left un-represented despite their best efforts to find an experienced advocate. Most solicitors will admit that they are reluctant to start proceedings on a case that has a less than 51% chance of succeeding. This is due to the high running costs of these types of cases as experts have to be consulted and paid well in advance, Medical Records have to be obtained and independent examinations have to be performed, sometimes several times between the start and end of a case, which all adds up and is non-recoverable for the solicitor should the case be lost. As legal aid has been removed for most types of medically negligent compensation claims solicitors have to front these costs themselves and sometimes will require a percentage of the awarded compensatory amount toward these expenses. This type of arrangement is known as a "conditional fee arrangement" and will normally entail a "no win, no fee" contract.