The healthcare system in the UK is among best in the world, and thankfully, due to the quality of our healthcare professionals, medical negligence is very rare. However, sometimes things do go wrong, possibly due to a lack of medical 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 have any further questions, or are unsure of the best route to take, it is recommended you consult a Solicitor. This article should not be deemed as legal advice.
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 provide closure after an incident and can go a long way toward ensuring this kind of incident doesn’t happen again.
If you have suffered injury, complication, and financial losses as a direct result of the negligence act, you may need to pursue a monetary compensation. This is when it becomes necessary to get in touch with a medical negligence Lawyer.
Many people go into a medical negligence claim not knowing exactly who they will be claiming against. Claims can be brought against hospital trusts, Doctors, Cosmetic Surgeons, Dentists, and mental health professionals — essentially anyone who owes you a medical duty of care. It does not matter whether they are part of the NHS or privately funded.
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.
By speaking to others who have experienced the medical negligence and have successfully received compensation, they may be able to recommend an expert Solicitor. A trustworthy Lawyer will also be able to provide you with contact information for their previous clients so you can ask about the process and how the 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 process as easy as possible, as well as maximising 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.
Clinical or medical negligence has a strict legal definition, which is important to understand, and how your case applies.
The claim will only go forward if you are able to prove two conditions:
Liability — the Nurse or Doctor was performing at lower standard than another professional in the same medical field would.
Causation — proving that the harm done to you is a direct result of the negligent action, and 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.
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, unfortunately, your case will go no further.
It is incredibly important that you get in touch with a Solicitor as soon as you can, to ensure these questions can be answered, and you act within the legal time limits.
In most cases concerning adults, the time limit set out by the Limitation Act 1980 is three years from what is known as the “date of knowledge”. This date could be when the negligence occurred, or much later when the harm becomes apparent. But you may be unsure of exactly when the three years started.
This limit is for formally lodging the claim with the court, not just 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.
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.
If the injury caused to the Claimant was brain damage, resulting in not being able to conduct their own affairs, there is no time limit. This is also true if the injury happened to a child who may 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 – but it is useful to understand your options before you speak to a Solicitor. There are four main paths to choose from.
Under this model, 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.
These are also known as “no win, no fee” agreements, and mean 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 the 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% of damages (subject to specific criteria). 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 this is your chosen method of funding, you should make sure to understand the contract fully. In some very rare cases, Solicitors have exploited weak or complex agreements and transferred the financial risk over to the Claimant.
You may have legal expenses insurance to cover the costs of the claim process and obtaining legal advice. This is commonly included in car or home insurance, so millions of people in this country already have it without realising. In medical negligence claims, many “Before the event” (BTE) policies do not cover these types 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 on the financial risks.
“After the event” (ATE) 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 less successful than hoped.
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.
The Legal Aid rules changed in 2013 and now most victims of medical negligence will not qualify for government funding.
One notable exception is neurological injuries suffered by children, in which case Legal Aid may be possible, but only if the negligence occurred during the mother’s pregnancy, in childbirth, or in the eight weeks following birth.
The Claimant’s losses must be presented in terms of mental anguish, affected quality of life, and loss of past, present and future earnings. However, only the losses caused by negligent acts will be taken into account; not any that are a result of underlying medical conditions which you would have suffered anyway.
Your losses are made up of special and general damages, legal costs, and interest. To prove these financial losses, you will need the receipts of medical expenses to back up your claims. Lost income from the past and future is also included.
The actual monetary value of your losses will be calculated by your Solicitor or by a specialist Barrister, who will look over similar cases in the past and estimate an average pay-out. If the previous claim was some time ago, your claim may be raised slightly to take inflation into account.
This next step is likely to be the longest, although little will be required from you at this point.
Once you have decided on your Lawyer and how you are going to fund the case, the initial investigation will begin. Your Solicitor will request your medical treatment history, including any details or notes that were taken at the time the negligence occurred.
The Solicitor will then put together a written statement with the details of your case, which you will need to approve and sign before it’s sent to independent medical experts. This is the point at which you can be sure that you have a claim, as the support of professional opinion will confirm the validity of your case. All of this can take up to eighteen months.
Once the best course of action has been agreed by all parties, a formal Letter of Claim will be sent to the hospital trust or Doctor in question, detailing exactly what you believe to have happened and why they are considered to be at fault. The Defendant then has four months within which to respond, usually in the form of admittance or refusal of the case.
If they do admit the claim, this allows your Solicitor to immediately negotiate a reasonable amount of compensation directly, subject to medical evidence, and financial losses being quantified.
A settlement can be reached any time until the case goes to court. It’s usually in everyone’s best interests to resolve the situation before it reaches the very costly court process. However, if the value of your claim cannot be agreed, then court proceeding may become necessary.
Either side can suggest a settlement before the date of the trial; this is known as a Part 36 offer, and it must be in writing. This can also be undertaken before court proceedings have been issued.
However, you will need professional advice on whether to accept an initial offer. If you reject the defendant’s offer and end up going to court, you could be liable for legal expenses if the eventual reward is no more favourable. If you win the case but have a lower settlement amount, you may be required to pay both sides legal fees, starting from the moment the offer was made.
If the hospital trust or Doctor does not admit fault for the claim, court proceedings will be put in motion. From the beginning of court proceedings, it can take up to two years to secure to hearing. Even if the hospital trust does admit liability, there may still be a dispute about the value of your claim; if this cannot be agreed, then court proceeding may still need to be issued.
Your Solicitor will look into the following (depending on the facts of your case):
Your Solicitor and their team will organise the court papers which detail the basis of your claim. This is then filed with the court and served on the Defendant when court proceedings are initiated.
The Particulars of Claim explain what circumstances led you to the claim, and why you believe the Defendant is legally and financially responsible for what happened.
Your Solicitor will send copies of your medical reports, explaining your injuries and a timeline of your expenses and any other financial losses you have suffered. Future losses may also be taken into account if the injury affected your ability to earn in the future, and also the costs of care.
The Claim Form is filed with the court and served to the Defendant on your behalf.
Your opponent has a limited time to file and send a detailed response, laying out the exact reasons why they are disputing your claim. This is called a defence.
Both parties Solicitors and sometimes a Barrister will attend a court hearing before a Judge. The parties and the Judge will set case management directions to ensure that the claim proceeds within a specified period. The court may also provide a trial timetable/window.
Both party’s costs are also discussed and agreed by the court at this point.
Both parties now present their evidence or documents which will be used in the proceedings.
Each party shares with the other copies of all of their signed written statements from medical experts and witnesses who will be called on at the trial. The medical experts’ opinion will be based on whether there was a Breach of Duty, and to what extent the patient was harmed by this substandard care.
The Defendant is given a Schedule of Loss which includes the full details of your financial claim, special damages, and future losses, as explained below. They will then be able to respond to your claim and offer a counter schedule.
Unlike in many other court cases, both sides must work together to present a solution. All of the medical experts involved will meet and organise a joint statement, detailing where they agree and where they disagree. It’s at this point that the Claimant’s Lawyer will get the best picture of how the Claimant stands in terms of success.
If there has been no success in reaching a settlement before the court date, then a trial is unavoidable. Medical negligence cases are unique in that there is no jury, and a Judge is the only person to make the final decision. This does mean you will have less time to wait.
Generally, you will need to give evidence, as will the medical experts in the case. The Judge will listen carefully to the medical, legal, and causation arguments before the court.
In the event you win, your compensation amount will be awarded to you by the Judge, and a timetable of payment will be arranged. The Defendant will also have to pay your legal expenses and costs. However, some costs are not recoverable and may be deducted from your damages. This will be discussed with you at the outset of your claim.
If you lose, there is not much more to be done. There is a small chance of appeal, although your Solicitor will have to consider carefully what the Judge has said to determine if this is worthwhile. Unfortunately, at this point, if you are told it’s not wise to appeal you will have reached the end of your case. If you’ve taken out a “no win, no fee” agreement with your Solicitor you will have nothing left to pay.
The process of making a medical negligence claim is a long one, which can be emotionally distressing if you don’t have the right kind of help and support. Hopefully, now you will feel more comfortable making the right decisions, most vitally in your choice of Solicitor, who will hold your hand throughout the claim. With the right support, the claim can be made as easily and stress-free as possible, resulting in the maximum compensation possible.