A Guide to Making a Medical Negligence Claim
The healthcare system in the UK is renowned across the globe for its excellence and quality of care and thankfully, due to the skill of our healthcare professionals, clinical negligence is rare.
However, sometimes things do go wrong. Accidents and mistakes can happen for several reasons including surgical errors, a lack of clinical knowledge, or inadequate staffing levels at an underfunded hospital.
If you have suffered due to medical negligence you are entitled to compensation.
Making a medical negligence claim can be a challenging process to navigate so it is important that you understand how things will progress as the claim evolves and how to make the best possible decisions for your personal situation.
Below is a brief guide as to how to bring a clinical negligence claim. It is worth noting that each claim is unique and that this guide is intended purely as an outline of the process and should not be taken as legal advice.
If you are considering making a medical negligence claim and have any further questions or would like to discuss the particulars of your case, it is recommended that you consult a solicitor.
How do I make a complaint?
If you are simply unhappy with the quality of medical care that you received but didn’t suffer any tangible adverse effects, either physically, mentally, or financially, and are perhaps more concerned with receiving an apology or an explanation, you might consider writing a letter to the doctor or hospital trust responsible for your care. This can often provide welcome closure following such an incident and can go a long way toward ensuring this kind of incident doesn’t happen again to future patients.
If, however, the incident has resulted in you suffering an injury, complication, or financial losses, you may be entitled to pursue financial compensation. At this point it is recommended you consult with an experienced medical negligence lawyer.
Who can I claim against?
Essentially, you can make a medical negligence claim against any individual or any legal entity that owes you a medical duty of care. This encompasses everything from hospital trusts and private medical practices to doctors, nurses, dentists, cosmetic surgeons, and mental health care professionals.
Depending on who was responsible for administering your treatment and care, claims can be brought against both the National Health Service (NHS) or the private health sector.
How do I know if I have a valid claim?
The first step in any medical negligence claim process is to establish that you have a valid claim. To qualify as a medical negligence case we need to be able to prove two things, liability, and causation. To establish liability we need to prove that the medical practitioner that treated you was negligent in the standard of care they provided to you. To prove causation, we need to be able to demonstrate that their negligence was responsible for your injury or complication.
As well as needing to satisfy the two conditions above, the claim also needs to be filed with the court within the legal statutory time limit for medical negligence claims. In the UK this is three years from the date of the incident. However, there are a number of exceptions to the 3-year time limit.
For example, if your injury or the damage sustained during treatment doesn’t become apparent until a later date, the three years is taken from the date the injury or condition starts to manifest itself, known as the ‘date of knowledge’. In this case, the burden is on the claimant to show that the date of knowledge fell on the later date; in any event, it is important to seek counsel from a specialist clinical negligence solicitor.
If you are unsure as to whether your case meets all the required criteria, get in touch and we can carry out a free initial assessment of your claim, either face-to-face or over the phone.
If you decide to proceed with your claim, then Sheldon Davidson Solicitor’s specialist medical negligence solicitors will provide you with impartial, expert legal advice to help support you throughout the entire claims process.
Am I entitled to make a claim?
Medical negligence has a strict legal definition, so it is essential that you understand how your case applies. Failure to meet either of the required conditions detailed below would exclude you from being able to pursue a clinical negligence claim.
The claim will only go forward if you are able to satisfy the following conditions:
The medical practitioner treated you in a way that no reasonably competent and skilled health care professional, with a similar background and in the same medical field, would have treated a patient.
Proving that the injury or the harm done to you is a direct consequence of the negligent actions of the medical professional that treated you and that it wouldn’t have otherwise occurred. This is assessed on the balance of probabilities, so it is down to the claimant’s legal team to prove that it is more than 50% likely the injury was caused by the alleged clinical negligence.
Medicine is a constantly evolving field with a great number of different schools of thought. You may feel as though the treatment you received was inappropriate or that an error was made by the doctor, but if other suitably qualified medical professionals are willing to testify that it was a reasonable act and that they would have treated you in the same way, unfortunately, your case is unlikely to go any further.
If you are considering making a medical negligence claim, it is important that you get in touch with an appropriately qualified solicitor as soon as possible to establish whether you have a valid claim and to ensure that you are able to file your claim with the courts within the required 3-year time limit.
How long do I have to make a medical negligence claim?
With respect to clinical negligence claims, the Limitation Act 1980 stipulates that an adult is required to bring a medical negligence compensation claim within 3 years from the date the negligent treatment was provided or the ‘date of knowledge’ if this is later. The “date of knowledge” refers to the date on which you became aware of your injury, for instance, the date you receive a cancer diagnosis if this has been delayed.
The 3-year limit is for filing your claim with the courts, rather than initiating the process with a solicitor. There is a lot of work that needs to be done prior to being able to file your claim with the courts, such as identifying and receiving medical reports from suitable medical experts.
Often this work can take weeks or even months, so it is essential you allow yourself sufficient time to make your claim.
As discussed previously, there are a number of exceptions to the 3-year time limit, as described below.
Legally, anyone under the age of 18 is prohibited from making a medical negligence compensation claim for themselves. However, a parent, guardian or suitable ‘litigation friend’ is entitled to make a compensation claim on their behalf. This can be done at any stage up to the date of the child’s 18th birthday, irrespective of whether the incident happened more than three years prior.
If a parent or guardian fails to make a claim on their child’s behalf or decides against it, then the child is entitled to make a claim themselves once they reach the age of 18 and have three years from the date of their 18th birthday in which to file their claim with the court.
Under the Mental Health Act (1983) a claimant must possess the cognitive ability to be able to pursue a claim for compensation. If at the time of the injury or negligence, the patient was suffering from a diagnosed mental condition that compromised their mental capacity to make a claim, the UK Statute of Limitations for medical negligence claims is paused until the person regains the capacity to be able to pursue a claim.
In the event that the medical negligence causes brain damage or if the patient was already brain-damaged but suffers further injury during treatment, then there is no limit on making a claim. If a person never regains sufficient cognitive ability to pursue a claim themselves, a claim can be made on their behalf by a ‘Litigation Friend’.
Where the patient has sadly passed away, either as a consequence of the negligence or otherwise, the statutory limitation period for their family to bring forward a claim is three years from the date of death unless the limitation has already expired. Alternatively, if a person dies whilst a claim is ongoing, the family will have a further three years from the date of the patient’s passing to continue the claim. The person bringing the claim will do so on behalf of the deceased’s estate, so it is essential that they have the correct standing i.e they are named on the Grant of Probate or are the Executor of the Will.
How do I find the right lawyer?
The key to maximising your chances of receiving the compensation you or a loved one deserves is to choose the right solicitor. Medical negligence is a complex field of law and medical negligence cases should only be undertaken by a legal professional with the prerequisite skills and experience.
When choosing a lawyer to handle your case, you should ensure that they are a medical negligence specialist, ideally one who has had previous experience of successfully handling cases similar to yours. There is no harm in asking a law firm whether they have the details of any previous medical negligence clients that would be happy to speak to you, so you can ask about the process and get their perspective on how the lawyer handled their case.
As well as ensuring your solicitor has the relevant experience and legal expertise, you should ensure you feel comfortable with your solicitor, and believe that they will be fully invested in your case throughout. Even the most straightforward medical negligence claims tend to take in excess of 18 months to settle, so working with a lawyer that you trust and feel comfortable with is your best chance of making the process as easy as possible and maximises your chances of making a successful claim.
How will I fund my claim?
Cost is often the primary concern for most parties when considering pursuing a compensation claim. However, the vast majority of legal firms undertake medical negligence claims on the basis of Conditional Fee Agreements (CFA), often referred to as ‘No Win No Fee’ arrangements, which are designed to ensure that there is only a minimal financial risk to you. After the preliminary meeting, your solicitor will determine whether you have a valid case for making a medical negligence claim. If so, they will outline the funding options available to you.
In the event that your claim is unsuccessful for any reason, under the terms of a No Win No Fee arrangement, there will be no legal fees for you to pay.
If your solicitor is successful in pursuing your claim, then your legal costs will be charged to your opponent. In most cases the solicitor is also likely to charge a ‘success fee’ which will be mutually agreed at the outset – this is a predetermined percentage of damages awarded.
The details of this funding option will be fully explained, including your obligations under the arrangement and any potential financial risks. Assuming you choose a legal firm regulated by the Solicitors Regulation Authority (SRA), your legal advisor will provide you with a ‘Client Care’ letter that will detail the structure and procedures involved in the claims process.
A client care letter is a requirement insisted upon by the SRA, the governing body for the legal profession. The SRA is designed to protect consumers of legal services by ensuring legal professionals comply with the rules, conduct themselves in a professional manner and offer a good standard of care and professional service. It is important to ensure that your representative is regulated by the SRA. This will give you peace of mind that you are receiving sound advice from a regulated professional.
When you first talk to your solicitor, they will help you to navigate your way through the funding process – but it is important you understand your options prior to speaking to a solicitor.
There are four main funding options to choose from:
Under the private funding model, you finance the claim using your own funds - this includes covering all of your lawyer’s fees, any administration expenses, and the cost of the trial. This is a seldom-used method of funding medical negligence claims.
Conditional Fee Agreements (CFA)
More popularly referred to as ‘No Win No Fee’ agreements, this type of funding model means you won’t have to pay any of your own solicitor’s legal costs if you lose your case.
There are certain exceptions to this rule, such as where cases are deemed fraudulent, or where you fail to comply with the requirements laid out in the conditional fee agreement. In return for the risk the solicitor takes in deferring their own costs, they will often charge a ‘success fee’ which is deducted from your damages if your claim is settled.
All success fees must be mutually agreed upon between the claimant and the solicitor and the maximum success fee is capped at 25% of damages. No Win No Fee arrangements are a hugely extremely popular way to fund a claim as the financial risks of going to court can be considerable.
Legal expenses insurance
Like millions of other people in this country, you may already have legal expense insurance without even realising it. This is commonly included in car or home insurance policies, offering legal expenses cover which could be used to pay for a clinical negligence claim. Often there's a set limit on the legal costs and you may have to choose a solicitor on the insurers’ own list. However, you should always ask to be referred to a clinical negligence specialist.
Since April 2013, legal aid to cover medical negligence claims is no longer available.
One notable exception is neurological injuries sustained by children, in which case public funding may still be available, but only if the negligence occurred during the mother’s pregnancy, in childbirth or in the eight weeks following birth.
How are your losses assessed?
The claimant’s losses must be presented in terms of their physical injury, the psychological effects of the incident and any historic and future financial losses such as loss of earnings, medical expenses, and travel costs. However, only the losses directly attributable to negligent acts will be considered.
Your losses are comprised of general damages, special damages, legal costs, and interest.
To demonstrate these financial losses you will need to produce appropriate receipts and bank statements to substantiate your claims. If you have failed to keep hold of receipts, we will discuss what alternative methods can be utilised. Lost income from the past and future is also included and will be calculated using your monthly average earnings taken from the previous six months’ payslips.
The final monetary value of your losses will be calculated by your solicitor or by a specialist barrister, who will look over similar cases previously settled and advise you of a probable award for your injuries and the figures to be claimed in respect of your financial losses. If the previous claim was some time ago, your claim may be adjusted to account for inflation.
What happens during the investigation?
The investigation stage is normally the longest, although it requires relatively little input from you.
Once you have decided to pursue a medical negligence claim, have selected your legal representative, and determined how you intend 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.
Your solicitor will then prepare a written statement with the details of your case. This statement will be based on your account of the incident and will need to be approved and signed prior to it being sent to independent medical experts. It is at this point you will find out whether you have a strong case, as the support of a professional medical opinion will confirm the validity of your claim. This process can take up to 18 months.
Once the best course of action has been decided upon by all parties, a formal Letter of Claim will be sent to the hospital trust or doctor in question, outlining exactly what you believe to have occurred and why they are considered to be at fault. The defendant then has a period of four months within which to respond to the allegations of negligence and causation. The defendant will either concede liability or deny the claim, sometimes they may admit that there has been negligent treatment but deny that this was responsible for the injury described.
If they do admit the claim this allows your solicitor to immediately negotiate a reasonable settlement directly, subject to the provision of medical evidence, and financial losses being quantified. If you have been seriously injured this may necessitate further medical reports.
A settlement can be reached at any time until the case goes to court. It’s usually in everyone’s best interests to resolve the situation prior to the case going to court due to the high costs involved. However, if the settlement value cannot be agreed upon between both parties, then court proceedings may become necessary.
Going to court
In the event that the hospital trust or doctor denies fault for the claim, court proceedings may become necessary. Court proceedings can often take a considerable length of time, sometimes taking up to two years from the date the solicitor issues proceedings to secure a hearing. Even if the hospital trust or doctor does admit liability, unless a mutual agreement on the value of the settlement amount can be reached, then court proceedings may still need to be issued.
Depending on the facts of your case, your solicitor will look into some or all of the following.
Particulars of claim
Your legal team will prepare the court papers which outline the basis of your claim. These will then be filed with the court and subsequently served on the defendant at which stage court proceedings are initiated.
Required under the Civil Procedures Rules (CPR) to start the court proceedings, the Particulars of Claim set out the alleged facts surrounding the claim and explain why you believe the defendant is legally and financially responsible for what occurred.
Your solicitor will also send across any accompanying documentation, including copies of medical reports and a schedule of the financial expenses and losses you have suffered. If relevant, details of future losses such as ongoing medical expenses and future loss of earnings will also be detailed for consideration.
The claim form is then filed with the court and served to the defendant on your behalf.
The defendant will then have 28 days to send a detailed response, outlining the precise reason why they are disputing your claim. This document is called a defence.
Pre-trial settlement negotiations
Your solicitor will continue to attempt to negotiate a pre-trial settlement up until the date of the hearing. The majority of claims can be resolved without a hearing, allowing for a faster, more cost-effective resolution.
Case and costs management hearing
Both parties’ legal representatives will attend a procedural court hearing before a judge. The judge and legal teams of both parties will agree upon case management directions to ensure that the claim proceeds within a specified period. The court may also provide a trial timetable/window.
Each party’s costs are also discussed and budgeted by the court.
Both parties are required to present their evidence or any relevant documentation which they intend to use in the proceedings.
Exchange of witness evidence
Both parties share copies of any signed written statements from witnesses who they intend to call during the trial. This may include statements from the patient and any family members present at the time of the treatment. It may also include statements from friends or family members who helped care for the claimant after the incident, as well as from the medical practitioners who provided the negligent treatment.
Exchange of medical evidence
The medical experts’ opinion will be based on whether there was a breach of duty of medical care and to what extent the patient was harmed by this substandard care.
Claiming for financial losses
The defendant is provided with a schedule of the financial losses you have suffered, which includes the full details of your historic and future financial losses. They will then be able to respond to your claim and offer a counter schedule.
Joint statement of medical experts
Unlike in many other court cases, both sides must work collaboratively with a view to resolving your claim. The medical experts representing both parties will meet and prepare a joint statement outlining where they agree and where they disagree. It’s at this stage that the claimant’s solicitors will get the best understanding of how the claimant stands in terms of success.
If no pre-trial settlement is able to be agreed upon before the date of the hearing, then a trial is unavoidable. The majority of cases will settle without the need for a court case, but it is the responsibility of your legal team to prepare your case as though it will end up in court. Like all civil cases, medical negligence cases are assessed by a Judge, rather than by a jury. This tends to mean you will have less time to wait.
Generally, you will not be required to stand up in court to give evidence and your witness statement will stand as your evidence. The Defence team may wish to cross-examine you on your statement. The medical experts will invariably be required to give evidence in the case. The Judge will listen carefully to the medical, legal, and causation arguments before the court and will then make a decision, either in your or the defendant’s favour.
In the event that you are successful with your claim, 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 cover 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 beginning of your claim.
If you lose, that is generally the end of the process. There is a small chance of appeal, although your solicitor will be best placed to advise you as to whether this option is worth pursuing based on what the Judge says. In the event your lawyer advises against appealing the decision, you will have reached the end of your case. If you’ve taken out a Conditional Fee Agreement (No Win No Fee agreement) with your solicitor, you will have nothing left to pay.
The process of making a medical negligence claim is complicated and without the support of an appropriately skilled medical negligence professional, can be an emotionally distressing and fruitless task. Hopefully, this guide will enable you to feel more comfortable making the right decisions, most importantly in your choice of legal representation.
With the right legal support from a solicitor you trust, making a medical negligence claim can be made as straightforward and stress-free as possible, whilst maximising your chances of securing the compensation you and your loved ones deserve.
Why choose our Expert Medical Negligence Solicitors in Manchester?
Established in Manchester in 1997, we are a leading specialist medical negligence law firm acting for claimants throughout the whole of England & Wales.
Our Medical Negligence Lawyers act regularly for clients across the Greater Manchester community including Ashton, Bury, Bolton, Radcliffe, Prestwich, Middleton, Failsworth, Rochdale, Oldham, and Whitefield.
We can support your needs wherever you live in Wales, England & Northern Ireland.
We specialise in No Win No Fee Medical Negligence Claims, so call us for free now using the number at the top of the page or complete the online contact form and a member of our team will get back to you.
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With Sheldon Davidson's Medical Negligence Solicitors in Manchester, you can be confident that your claim is in safe hands.