Making A Medical Negligence Claim

• We can take the case on a No Win No Fee basis
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• Medical negligence law experts with over 15 years of experience
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• High success rates and everything you need to win your case

How to claim for medical negligence

The healthcare system in the UK is among the best in the world. Thankfully, due to the quality of our healthcare professionals, medical negligence is rare. However, sometimes things do go wrong, whether due to a lack of medical knowledge, mistakes, or poor levels of staffing in underfunded hospitals.

A medical negligence claim can be a difficult process to navigate. That is why it’s so important that you understand how things will progress and how to make the best decisions in your situation.

Below is a short guide with advice on how to start a medical negligence claim. If you have any further questions or are unsure of the best route to take, we recommend consulting a solicitor.

How do I make a complaint?

If you aren’t sure that you want to pursue a medical negligence claim and are perhaps more concerned with getting an explanation or an apology, first, you should 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 . For further information please visit the AvMA guide on making a complaint about NHS or Private Healthcare.

If you have suffered an injury, complication, or financial loss as a direct result of a negligent act, you may be able to pursue financial compensation. This is when you need to get in touch with a medical negligence lawyer.

Who can I make a medical negligence claim against?

Many people begin making a medical negligence claim without knowing 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.

Can I make a medical negligence claim?

The first step is to be sure you have a valid claim. You may be intimidated by the process of claiming for medical negligence but that is why we are here to help you. Get in touch and we can provide an initial consultation for free, either in person or over the phone, to determine whether you have a valid claim. If you decide to proceed, we will support you every step of the way.

There is a strict legal test for establishing a clinical or medical negligence claim. The claim will only go forward if you can establish:

Breach of Duty– The treatment you were given fell below a reasonable standard of care i.e. the standard of treatment given was such that no responsible doctor would have treated you in the way that you were treated.

Causation – Proving that the harm done to you is a direct result of the breach of duty and it wouldn’t have otherwise occurred. This is assessed on the balance of probabilities, so there must be at least a 51% chance that the medical practitioner caused the damage.

Medicine is an ever-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 they would also do, unfortunately, your case will go no further.

You must 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.

How long do I have to make a medical negligence claim?

In most medical negligence cases, the time limit set out by the Limitation Act 1980 is three years from the date the negligent treatment occurred or the “date of knowledge” if this is later. The “date of knowledge” is defined as when a reasonable person would have known that their injuries were significant and that they were as a result (either in whole or in part) to the Defendant’s negligence. You may be unsure of exactly when the three years started.

This time limit is for formally lodging the claim with the court, not just for speaking to a lawyer, so it is best to contact a solicitor for help as soon as you can. However, there are exceptions to this rule:

Children

Any victim of negligence, who was under the age of 18 when it occurred, has three years starting from their 18th birthday to bring forward the claim, as they are then considered to be able to undertake the claim themselves.

Mental illnesses

If, at the time of the injury or negligence, the patient was suffering from a diagnosed mental illness, which caused them to lose capacity, the limitation period of three years doesn’t start until the date that they are considered to have regained capacity.

Brain damage

If the injury caused to the patient was brain damage, resulting in them not being able to conduct their affairs permanently, there is no time limit. This is also true if the injury happens to a child who may be unable to manage their affairs when they are older.

Death

Where the patient has sadly passed away, the limitation period for their family to bring forward a claim is three years from the date of death, unless time limit has already passed.

Alternatively, if they die while pursuing a claim, the family will have three years from this date to continue with the claim. The person bringing the claim will do so on behalf of the patient’s estate, so it is important to have the correct standing i.e. they are the Executor of the will or named on the Grant of Probate.

How do I find the right lawyer for my medical negligence claim?

There are many things you need to know when making a medical negligence case, which is why you need a lawyer to make the process as easy as possible.

Although this might seem like an easy task, not just any lawyer will get the results 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.

You can find a trustworthy and reliable medical negligence solicitor who has the best chances of winning your case by:

• Speaking to others who have experienced medical negligence and have successfully received compensation, as they may be able to recommend an expert solicitor
• Ensuring that your representative is regulated by the Solicitors Regulation Authority (SRA), the governing body that ensures legal professionals provide a good standard of care and conduct
• Consider any reviews or feedback available online, including any case reports or studies
• Feeling personally comfortable with your solicitor and believing they will be fully invested in your case throughout.

Please note that a personal injury lawyer is not the same as a medical or clinical negligence lawyer. Medical negligence is a complex field of law that should only be undertaken by a professional.

How will I fund my medical negligence claim?

Cost is often the main concern when starting the medical negligence claim process. However, the vast majority of medical negligence claims are funded through No Win No Fee arrangements, which are designed to ensure that there is minimal financial risk to you.

After the initial meeting, your solicitor will discuss funding options with you if you have a strong case for making a medical negligence claim. There are four main options to choose from:

Private funding

Under this model, you use your funds to pursue the claim – this includes paying all 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)

Conditional Fee Agreements are also known as No Win No Fee agreements and are a popular way to fund a claim. A CFA means you won’t have to pay your solicitor’s legal costs if you lose your case unless your claim is deemed fraudulent or you fail to comply with our reasonable requirements to pursue the case.

If your solicitor is successful in pursuing your claim, they will charge the Defendant your legal costs. They will charge you a ‘success fee’, which is deducted from your compensation upon the successful conclusion of your claim. All success fees must be agreed at the outset between the claimant and the solicitor. The maximum success fee is capped at 25% of compensation (subject to specific criteria). Your legal advisor will give you a ‘Client Care’ letter which will detail the structure, and procedures involved in the claims process.

BTE and ATE insurance policies

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 it.

In medical negligence claims, many ‘before the event’ (BTE) insurance 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’ (ATE). We will assist you in ascertaining whether you have this type of policy and whether it will cover you for the claim.

ATE insurance is usually only taken out 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 to cover external expenses, such as medical experts’ fees.

ATE policy premiums 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 in clinical negligence cases if the claim is successful. The policy will cover the cost of medical reports and the risk of defendant fees, if the case is unsuccessful. If the case is unsuccessful, the policy is self-insured and no premium becomes payable.

Legal aid

The legal aid rules changed in 2013 and now most victims of medical negligence will not be entitled to government funding.

There are notable exceptions to the legal aid rules, including neurological injuries suffered by children, although even these cases must satisfy specific criterions.

How do you assess your losses?

The claimant’s losses must be presented in terms of their physical and psychological injury and past and future financial losses, such as travel costs or loss of earnings. However, only the losses caused by negligent acts will be considered – not any that are a result of underlying medical conditions or unrelated injuries.

Your physical and psychological injuries are called general damages and you will receive compensation for your pain, suffering and loss of amenity based on awards given in similar circumstances in the past (i.e. based on case law) and on guidance issued by the Court (JC Guidelines).

Your financial losses are called special damages. To prove these financial losses, you will need receipts or bank statements of expenses to back up your claims. If you have not kept documentation, we will discuss what alternative methods can be used.

What happens during the medical negligence claims process?

This next step is likely to be the longest, although little will be required from you at this point. Once you have decided you’re going ahead with making a medical negligence claim, the initial investigation will begin. The process is as follows:

• Your solicitor will request your medical records, including any details or notes that were taken at the time the negligence occurred
• Your solicitor will put together a written Witness statement with your recollection of events. You will need to approve and sign it before it’s sent to independent medical experts.
• Independent medical experts will be instructed to provide their opinion upon the treatment that you have received and/or your injuries. These initial steps can take up to 18 months to complete
• Once all necessary evidence has been obtained, a formal Letter of Claim will be sent to the hospital trust or doctor in question. It will detail exactly what you believe to have happened and why they are considered to be at fault. The defendant then has four months to respond to the allegations
• The defendant will either admit liability or deny the claim. Sometimes, they may admit that there has been a breach of duty but deny that this has caused the injury complained of

If they do admit the claim, this allows your solicitor to immediately negotiate a reasonable amount of compensation for your injuries. This is subject to medical evidence and financial losses being calculated. If you have been seriously injured. This may require further independent medical expert evidence.

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 before it reaches the costly court process. However, if the value of your claim cannot be agreed upon, then court proceedings may become necessary.

What happens when a medical negligence claim goes to court?

If the hospital trust or doctor does not admit fault for the claim, court proceedings can become necessary. It can take up to two years, from starting court proceedings to reach a Trial (the hearing to consider your case). 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 proceedings may still need to be started.

According to NHS Resolution, 80% of NHS clinical negligence cases were settled outside of court in 2022/23 so it is less likely that your medical negligence case will need court intervention.

However, if your claim does need to be started at court, then the following further steps may need to be taken:

Particulars of Claim

The Particulars of Claim explain what circumstances led to the claim and why you believe the defendant is legally and financially responsible for what happened.

Alongside the Particulars of Claim, your solicitor will prepare a Claim Form (the document required to register your claim at Court, copies of your independent medical expert reports will be finalised (explaining your injuries) and a schedule of the financial losses you have suffered will be prepared. Future losses may also be considered if the injury affected your ability to work, as will the costs of care.

All of these documents are sent to the court and served on the defendant on your behalf.

The Defence

The defendant has a limited time to file and send a detailed response, laying out the exact reasons why they are disputing your claim. This document is called a defence.

Case and costs management hearing

Both parties’ solicitors and sometimes a barrister will attend a procedural court hearing before a judge to budget each party’s costs. The parties and the judge will also set a timetable for the case, which sets out when each of the steps leading up to the Trial should be completed.

Full disclosure

Both parties now present their evidence or documents, which will be used in the proceedings.

Exchange of witness evidence

Each party shares with the other copies of all their signed written statements from witnesses who will be called on at the Trial. This may include the patient and family members who were present at the time of the treatment and who may have assisted as they recovered, together with the clinicians who provided the negligent treatment.

Exchange of medical evidence

The medical experts’ opinion will be based on whether there was a breach of duty and to what extent the patient was harmed as a result.

Claiming for financial losses

The defendant is given a schedule of loss which includes the full details of your past and future financial losses (special damages), as explained below. 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 together to resolve your claim. Each party’s medical experts 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.

What is the Trial process for making medical negligence claims?

If there has been no success in reaching a settlement before the court date, then a Trial is unavoidable. Medical negligence cases, like all civil cases, are unique in that there is no jury and a judge is the only person to make the final decision.

Generally, you will not need to give evidence. Your witness statement will stand as your evidence. The Defence team may wish to question you on this. The Judge will listen carefully to the medical, legal and causation arguments before the court.

What happens when you get the verdict for your medical negligence claim?

In the event that 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 to pay.

A word from our experts

Sara Stanger, Director and Head of Medical Negligence (Liverpool) says;

“The clinical negligence team has a wealth of experience, ranging from Solicitors who are accredited by the Law Society, to our own in-house nurse who assists the team in assessing cases. We pride ourselves on putting client’s needs at the forefront and trying to obtain compensation for them as quickly as possible”.

Why come to Been Let Down for medical negligence advice?

Starting a medical negligence claim can be a big decision and you might initially be intimidated by the process. That is where we come in. We’re here to help you make the best decisions for your case and guide you every step of the way.

If you’re looking to start a medical negligence claim, here are a few reasons why you should choose Been Let Down:

• We’re fully authorised by the Solicitors Regulation Authority
• You will only have to pay us if your case is successful since we take cases on a No Win No Fee basis
• As an independent law firm, we deal with our clients directly and always act with their best interests in mind
• Our medical negligence specialists have a wealth of relevant experience and knowledge. That’s why we have such a high success rate
• Take a look at our client reviews for real-life testimonials about the tailored approach we use for each compensation case we take on

Contact us today to make your medical negligence claim

Our experts are on hand to help you get the compensation you deserve. If you need advice about how to start a medical negligence claim, get in touch now and find out how we can help.

Please call us on 0800 234 3234 or contact us and a member of our legal team will call you back.