Making A Medical Negligence Claim

How To Start A Medical Negligence Claim

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 rare. However, sometimes things do go wrong, sometimes due to a lack of medical knowledge, mistakes 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.

Below is a short guide on how to bring a medical negligence claim. It should be noted that each claim is different and that this article is merely a guide and should not be deemed as legal advice. If you have any further questions, or are unsure of the best route to take it is recommended that you consult a solicitor.

How do I make 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 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 an injury, complication, or financial losses as a direct result of a negligent act, you may be able to pursue financial compensation. This is when it becomes necessary to get in touch with a medical negligence lawyer.

Who can I claim against?

Many people begin making 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.

The first step is to be sure you have a valid claim.

To qualify as a medical negligence case we need to prove the medical practitioner was negligent and that the negligent treatment caused you harm. To prove that a medical practitioner was negligent we must establish that the standard of treatment provided was such that no responsible medication practitioner would have treated you in the way that you were treated. In addition, when making a medical negligence claim, it must be filed with the court within three years of the harm or injury occurring. There are exceptions to the time limit, for example if you discovered the harm or damage done to you months or years after the incident (the date of knowledge); in any event, it is important to seek advice from a specialist medical negligence solicitor.

You may be daunted by the process of making a medical negligence claim but there is no need to be. 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 each step of the way.

Can I make a claim?

Clinical or medical negligence has a strict legal definition, so it is important to understand how your case applies. The claim will only go forward if you are able to prove two conditions:

Liability— The healthcare professional treated you in a way that no responsible healthcare professional in the same field would treat a patient.

Causation— Proving that the harm done to you is a direct result of the negligent action, and it wouldn’t have otherwise occurred. This is assessed on the balance of probabilities , 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.

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

In most cases concerning adults, 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 when your injury became apparent, for instance the date you receive a cancer diagnosis if this has been delayed. 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:

Children

Any victim of negligence, who was under the age of eighteen 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 in their own right.

Mental Illnesses

If, at the time of the injury or negligence, the patient was suffering from a diagnosed mental illness, which causes 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 own affairs permanently, 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.

Death

Where the patient has sadly passed away, either through the negligence or otherwise, the limitation period for their family to bring forward a claim is three years from the date of death, unless limitation 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 that they 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?

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 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.

How will I fund my claim?

Cost is the main concern for most when considering pursuing a claim. However, the vast majority of medical negligence claims are funded through Conditional Fee Agreements (CFA), more popularly known as ‘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 determine if you have a strong case for making a medical negligence claim. If so, they will discuss funding options with you.

If your solicitor is successful in pursuing your claim, they will charge the opponent your legal costs. The solicitor may also charge a ‘success fee’ which will be mutually agreed at the outset – this is a fixed percentage of damages awarded. The details of this funding option will be fully explained, including your obligations under the arrangement and any potential risks. Your legal advisor will give you a ‘Client Care’ letter which will detail the structure and procedures involved in the claims process.

A client care letter is best practice according to the Solicitors Regulation Authority (SRA), the governing body for the legal profession, which ensures that legal professionals provide a good standard of care and professional service and conduct. 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 useful to understand your options before you speak to a solicitor. There are four main paths to choose from.

• Private funding

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.

• Conditional Fee Agreements (CFA)

These are also known as No Win No Fee agreements and mean you won’t have to pay any of your own solicitor’s legal costs if you lose your case, unless your case is deemed fraudulent, or you fail to comply with our reasonable requires to pursue the case. 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). CFA’s are a very popular way to fund a claim as the financial risks of going to court can be huge.

• 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. 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. We will assist you in ascertaining whether you have this type of policy and whether they will cover you for the claim.

‘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 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-insuring and no premium becomes payable.

• Legal Aid

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.

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 i,e travel costs or loss of earnings. However, only the losses caused by negligent acts will be taken into account; not any that are a result of underlying medical conditions or unrelated injuries, 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 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 utilised. 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 advise you of a likely 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 raised slightly to take inflation into account.

What happens during the investigation?

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, have chosen your lawyer and discussed 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 based on what you have told us, 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 18 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 to the allegations of negligence and causation. The defendant will either admit liability or deny the claim, sometimes they may admit that there has been a negligent treatment 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 directly, subject to medical evidence, and financial losses being quantified. If you have been seriously injured this may require further medical evidence.

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 proceedings may become necessary.

Going to court

If the hospital trust or doctor does not admit fault for the claim, court proceedings can become necessary. From the beginning of court proceedings, it can take up to two years to secure a 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):

• Particulars of claim

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 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 schedule of the financial losses you have suffered. Future losses may also be taken into account if the injury affected your ability to work, as will the costs of care.

The Claim Form is filed with the court and served to the defendant on your behalf.

• The defence

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 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. 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.

Each party’s costs are also discussed and budgeted by the court.

• 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 of 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 provided assistance 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 by this substandard care.

• 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 with a view to resolving your claim. 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.

The trial

If there has been no success in reaching a settlement before the court date then a trial is unavoidable. Most cases will settle without a court case but your case must be prepared as though it will end up before the court. 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. This does mean you will have less time to wait.

Generally, you will not need to give evidence and your witness statement will stand as your evidence.  The Defence team may wish to question you on this.  The  medical experts will usually always give evidence 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 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, making a medical negligence claim can be made as easily and stress-free as possible, resulting in the maximum compensation possible.

Contact us today

Our experts are on hand to help you get the compensation you deserve. If you’re searching for advice about how to start a medical negligence claim, get in touch now and find out how we can help with your case.

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