Medical or clinical negligence claims are brought when a patient has suffered injury as a result of substandard medical treatment. Medical negligence claims can arise out of all kinds of medical treatment, such as a doctor failing to diagnose your condition, delay in treatment, failure of a medical product or device or mistakes made in surgery or a procedure.
Medical negligence claims are often complex and difficult to prove. For your claim to be successful you must prove:-
- Negligence – that there was a breach of duty of care owed to you by the health professional concerned. This means that the standard of care you received fell below the standard to be expected of a reasonably competent medical practitioner at that time.
- Causation – that the breach of duty or negligence of the clinician caused you injury which you would not otherwise have suffered. In other words, you would not have suffered your injury if the health professional had provided the correct standard of care.
- Loss – you must prove that you sustained an injury.
The duty will be on you to prove your claim and you will require evidence to prove your claim. We will recommend obtaining an expert report from independent medical experts who have both a specialist knowledge of the area of medicine relevant to your treatment and injury and experience of the litigation process. Without supportive expert evidence, you will be unable to pursue your claim.
Before you start your claim, it is important to think about how you will pay for your legal costs and expenses (such as the cost of expert reports).
The cost of investigating and pursuing a medical negligence claim can be very high. However, there are different options available to limit or entirely remove the cost from you.
There are a number of ways to fund your claim and we will discuss the best option with you.
- Conditional Fee Agreements (no win-no fee agreement) – Under a Conditional Fee Agreement you will not be liable to pay your solicitors’ costs unless you are successful. We represent most of our clients on this basis. If the claim is successful, the majority of your legal fees will usually be recovered from the defendant, while any non-recoverable costs, such as the success fee and your insurance premium are paid from the damages. The success fee will normally be based on a percentage of the compensation secured.
- Legal Expenses Insurance – you may have legal expenses included within an insurance policy you hold. In other cases you can take out special legal expenses insurance to cover your costs.
- Private Funding – Where you pay for everything yourself.
There are strict time limits for bringing a claim. If you miss the window to start a claim, you are unlikely to be able to pursue compensation, no matter how justified your claim.
In general, you have three years from the time when the medical negligence happened to start a claim. However, if you only become aware later that negligence may have occurred or that you were injured as a result, the three year time limit may be counted from the date you found out, rather than when it occurred.
If the claim relates to a child, they will have until their 18th birthday to bring a claim. The child will then have a further three years to bring a claim if you have not already done so – giving them until their 21st birthday to start a claim.
Where the injured person does not have the mental capacity to bring a claim themselves, there is no time limit for you to bring a claim on their behalf. This will only change if they later regain capacity. In this case, they will then have three years from the time when they regain mental capacity to bring a claim.
Please bear in mind also that in order to get to the stage where a claim can be brought, we will need to investigate the claim, such as applying for your medical records and instructing a medical expert. This can take time and it is therefore important to discuss it with us quickly if you think that you have a claim.
While these limits are strict, they are not always conclusive, so if you believe you have suffered and are outside the time limits, please still get in touch.
To ensure that the medical report is unbiased, a medical report cannot be prepared by your GP or anyone else who may have treated you.
We will arrange for you to see a medical expert. The expert will want to know how well you have recovered from the injury and if there are any permanent injuries. Depending on the severity of your injuries, your medical appointment will probably last between 30-60 minutes and the expert may wish to examine you. After the medical appointment the expert will prepare a medical report and send it to us. We will then forward a copy of the report to you and discuss the next steps to be taken.
Sometimes if the injury is complex, it will be necessary to obtain reports from further experts.
Most medical negligence claims are settled without the need for you to go to court which means that you can usually secure compensation faster, at lower cost and with less stress. We will guide you through the claim, ensuring that wherever there is an opportunity to successfully finish your claim, we will do so.
You can expect the following during the claims process:-
- Initial contact – When you first speak to us, we will discuss the circumstances and the impact on your health. We will then advise whether we think your claim merits further investigation, as well as discussing the various options for funding your claim.
- Investigation – This will involve obtaining medical records from the NHS Trust or other healthcare provider, gathering witness evidence and instructing an independent medical expert.
- Letter of claim – Once we are satisfied that your case has merit, we will send a letter to the defendant setting out the details of your claim and the likely compensation you are seeking to resolve the claim.
- Defendant’s response – The defendant is required to respond to your claim within four months, although there are occasions when their investigations take longer than this. We will make sure they respond quickly to keep your claim on track.The defendant will usually either admit full or partial liability for the negligence and its consequences, or deny responsibility for any wrongdoing. If they admit liability, they may offer a settlement at this stage.
- Considering the defendant’s response – Whatever response the defendant gives, we will talk you through your options. Where we feel any settlement offered is fair, we will tell you so. If no settlement is offered or we feel the offer is low, we will advise you of your other options. This could include attempting to negotiate a more favourable settlement or taking court action.
- Issuing court proceedings – If you decide you want to take further action, we will start court proceedings by issuing (starting) your claim and submitting Particulars of Claim setting out the details of your case to the court.
- Defence – The defendant will then have 28 days to serve a Defence to the Particulars of Claim.
- Directions Questionnaire – The parties will need to file a Directions Questionnaire and the court will then prepare a timetable finishing with a trial date for a judge to hear your case. This is normally around 18 months from when the defendant responds to your claim.
It is important to note, however, that even claims that reach this stage rarely make it to court as they can usually be resolved earlier through pre-trial negotiations.
- Pre-trial negotiations – In the period before your hearing date, we will work with you, the defendant and their legal team to try to agree an out of court settlement. This may involve direct negotiations, as well as alternate dispute resolution methods, such as mediation.
In most cases this approach is highly successful and we have a very strong track record of achieving positive outcomes during pre-trial negotiations, saving our clients time, money and stress.
- Trial – In the unlikely event we are not able to reach a satisfactory settlement before a case reaches court, we will ensure you have representation for your hearing. We will ensure your case is properly presented and that nothing is overlooked.
We will also instruct a senior clinical negligence barrister who will advise on strategy for the hearing and will present your case on the day.Medical negligence claim hearings are heard in front of a judge without a jury and give both sides an opportunity to present their arguments and supporting evidence. The judge will then make a final decision.