Healthcare in the UK is some of the best in the world, and we are lucky to have so many excellent healthcare professionals that medical negligence is very rare. However, sometimes things do go wrong, usually either through a lack of knowledge or poor levels of staffing in underfunded hospitals.
It can be a difficult process to navigate, and that is why it’s so important that you understand how things will progress and how to make the best decisions for your situation. The below is a short guide to making a medical negligence claim. It should be noted that each claim is different. If you are unsure about the content of this article, you will need to consult a Solicitor. The article should not be deemed as legal advice.
Making a Complaint
If you aren’t sure that you want to issue a claim, and are perhaps more concerned with getting an explanation or an apology, you should first of all write a letter to the hospital trust or doctor who treated you. This can be a fantastic way to get closure after an incident, and can go a long way toward ensuring this kind of incident doesn’t happen again.
Unfortunately, this is often not enough for the victim, who may have suffered injury, complication and financial losses as a direct result and requires a monetary compensation. This is when it becomes necessary to get in touch with a medical negligence lawyer.
Who Can I Claim Against?
Many people go into a medical negligence claim not knowing exactly who they will be claiming against. Claims can be taken out against hospital trusts, specific doctors, cosmetic surgeons, dentists, mental health professionals and more – essentially anyone who owes you a medical duty of care. It does not matter whether they are part of the NHS or privately funded.
How To Find a Lawyer
Although this might seem like an easy task, not just any lawyer will get the results that you want. You should seek the help of a knowledgeable medical negligence solicitor, preferably one who has had successful results in similar cases to yours. As the particulars of medical negligence claims can be quite diverse, this could be difficult.
Feel free to talk to other people who have been in your situation, if you know any, about who represented them. A competent lawyer will also be able to provide you with contact information for their previous clients so that you can ask about the process and how this lawyer dealt with their case.
As well as the relevant knowledge and experience, you should feel personally comfortable with your solicitor, and believe that they will be fully invested in your case throughout – this is your best chance of making the difficult process as easy as possible, as well as helping your chances of succeeding.
Please note that a personal injury lawyer is not the same as a medical or clinical negligence lawyer. Medical negligence is a very complex field of law that should only be undertaken by a professional.
Can I Make a Claim?
Clinical or medical negligence has a strict legal definition, so you should know straight away what that is, and whether it applies to your situation.
The claim will only go forward if you are able to prove two conditions:
- Liability – this is when you will present evidence that the nurse or doctor who dealt with you was not acting in the manner that a similar professional would.
- Causation – proving that the harm done to you is a direct result of this action, and therefore wouldn’t have otherwise occurred. This is balanced on probability, so there must be at least a 50% chance that the medical practitioner caused the damage.
Unfortunately, medicine is a constantly changing field with many different schools of thought. You may feel as though a doctor did something wrong, but if other doctors are willing to come forward and say that it was a reasonable act and something that they would do, the case will go no further.
Clearing up these details is why it is so incredibly important that you get in touch with a solicitor as soon as you can. Another reason to hurry is the issue of time limits.
What Is The Time Limit?
In most cases concerning adults, the time limit set out by the Limitation Act 1980 is three years from what’s known as the “date of knowledge”. This date could be when the negligence occurred, or it could be much later when the harm becomes apparent – you may be unsure of exactly when the three years started.
This limit is for bringing forward a claim, not for speaking to a lawyer, so it is best to contact help as soon as you are able. However there are exceptions to this rule.
Any victim of negligence, who was under the age of eighteen when it occurred, has three years starting from their eighteenth birthday to bring forward the claim, as they are then considered to be able to undertake the claim in their own right.
- Mental Illnesses
If at the time of the injury or negligence, the patient was suffering from a diagnosed mental illness, their limitation period of three years doesn’t start until the date that they are considered fully recovered.
- Brain Damage
If the injury caused was brain damage or something similar which would mean an adult was not able to conduct their own affairs, there is no time limit. This is also true if the injury was done to a child who will be unable to manage their affairs when they are older.
Where the claimant is dead, either through the negligence or otherwise, the limitation for their family to bring forward a claim is three years from the date of death. Alternatively, if they die while pursuing a claim, the family will have three years from this date to continue with the claim.
When you first talk to your solicitor, they will help you to navigate your way through the funding process – although there’s nothing wrong with having an idea of your plan before going in. There are four main paths to choose from.
- Private funding
Quite simply, you use your own funds to pursue the claim – this includes paying all of your lawyer’s fees, any administration costs, and the cost of the trial. This is not a common method of funding medical negligence claims.
- Conditional Fee Agreements (CFA)
These kinds of agreements are often known as “no win, no fee” agreements, and at their most basic they mean that if you lose your case, you won’t have to pay any of your own solicitor’s legal costs. In return for the risk the Solicitor takes in deferring their own costs, they can also charge a success fee which is deducted from your damages upon successful conclusion of your claim. All success fees must be agreed between the claimant and the Solicitor and the maximum success fee is capped at 25%. The success fee is negotiable. CFA’s are a very popular way to fund a claim as the financial risks of going to court can be huge.
A note about Conditional Fee Agreements: If you arrange for this kind of funding, you should make sure to understand the contract fully, despite how complex the conditions might seem. In some very rare cases, solicitors have exploited weak or complex agreements and transferred the financial risk over to the Claimant.
- BTE and ATE insurance policies
You may have legal expenses insurance to cover the costs of the claim process and obtaining legal advice. It is often something that’s sold as an extra on car or home insurance, so millions of people in this country already have it without realising. In medical negligence clams many of the BTE policies do not cover these type of claims. Legal expenses insurance can be purchased both “before the event”, in case of potential future legal action, or “after the event”, once the decision to make a claim has been made but the Claimant has chosen not to take the financial risks.
This insurance is usually only taken out after the event if there was no “before the event” cover, or the policy had expired. These kinds of policies are typically used in conjunction with a Conditional Fee Agreement when all the costs are not covered; for example, you may be required to pay the other side’s legal costs if the claim is unsuccessful or simply less successful than hoped.
“After the event” ATE policies, are usually deferred until the end of the claim and are only paid if the claimant is successful. You should note that part of the ATE policy is recoverable from the defendant if the claim is successful.
- Legal Aid
It used to be that everyone who wanted to file a medical negligence claim could receive assistance from the government. However this rule was changed in 2013 and now most victims of medical negligence will not qualify.
One notable exception is when neurological injuries are done to children, in which case they may be eligible for Legal Aid, but only if the negligence occurred during their mother’s pregnancy, in childbirth or in the eight weeks following birth.
for compensation todayCLAIM ONLINE