Medical negligence claims

What is medical negligence?

If you, a family member or friend, have received medical treatment and that treatment has gone wrong then you may be able to make a claim in negligence against the medical provider for the additional harm which you have suffered and consequential financial losses.

Medical negligence does not only include treatment which you have received but may also include a failure to provide treatment at all or a delay in diagnosis and treatment.

A claim can be brought against any medical provider including general practitioners, NHS hospitals, private hospitals, nurses, dentists, chiropractors, physiotherapists, opticians, pharmacists etc. 

Some examples of medical negligence are as follows:

• Failure by a GP to refer you to a specialist for investigations
• A mistake during surgery requiring you to undergo a different procedure and a protracted recovery
• Giving you the incorrect medication
• Failure to obtain your informed consent to agree to a procedure/treatment

To assess whether you have suffered an avoidable injury and are entitled to compensation as a result, contact a specialist clinical negligence solicitor for advice.

What are the time limits for making a medical negligence claim?

In a medical negligence claim, the general rule is that any court proceedings must be started within 3 years of the date on which the negligence is said to have happened (i.e. the date of treatment that you are concerned about), or the date on which you knew or should have known that you had a significant injury from the treatment. This second date is referred to as your Date of Knowledge. If the claim is being brought on behalf of the estate of someone who has passed away then court proceedings must be started within 3 years of the date of death.

Different rules apply to children and those who lack capacity. Proceedings brought by or on behalf of a child must be started at court three years from their 18^th birthday (i.e. 3 years from the date on which the child legally becomes an adult). If a child or adult has suffered a brain injury such that they are considered to lack capacity under the mental health regulations then there may not be such a time limit. This will need to be carefully assessed by a specialist Solicitor together with advice from a Medical Health Professional.

In all potential cases it is important to contact a specialist solicitor as soon as you think you may have a medical negligence claim so that investigations can be started as soon as possible.

How long do medical negligence claims take?

A medical negligence claim can be a lengthy process and there are a number of complex steps involved as we have to be sure that we have investigated a claim properly and have the evidence we need to ensure your claim is as strong as it can be. If a case does not settle, the ultimate way in which it is finalised is in front of a judge in a court. We therefore have to build each case as if it could be presented to a judge (even though this is very unlikely). 

The average lifespan of a claim is less than 4 years, however, it can take less time or longer depending on a number of factors. One of the ways in which we try to speed up the process is, when appropriate, we invite potential defendants to admit liability at a very early stage by sending them a “notification letter”. This is a document which outlines our allegations but confirms that our investigations are not yet finalised. Occasionally, a defendant will admit liability very early in a case, meaning our investigation is limited to considerations as to how much your claim is worth.

Other factors can lengthen the lifespan of a claim. For example, you may be undergoing treatment and we may need to wait until this is complete, or, for a child’s claim, we may need to wait until they have reached a certain age or milestone until we know the extent of the injury.

We will, of course, keep you updated at each stage and provide you with timescales as the claim is progressing and we do all we can to try and encourage a timely resolution to your case including promoting mediations, making early offers and requesting interim payments.

Why should I make a medical negligence claim?

The main reason for making a claim (and the only remedy that is available in accordance with the law) is to obtain compensation.

If you have been injured as a result of medical negligence, then you will be able to claim compensation for your injuries themselves (your pain and suffering), any financial losses that you have already incurred and for the costs of any care, aids and equipment, treatment etc. that you may need in the future as a result of the negligent treatment.

If the claim is relating to the death of a loved one, we can also include a claim for statutory bereavement damages, funeral expenses and a claim for dependency if you were financially dependent upon the deceased.

The aim of the compensation is to try and put you back in the position that you would have been in, had the negligence not occurred. The compensation obviously cannot take away any injuries that you have suffered, but it can make sure that you are not out of pocket for your past expenses and it can ensure that you have money available for anything that you may need in the future.

There are a few other potential benefits of bringing a claim and these are:

• During the process of a claim, the circumstances of your treatment will be investigated. After these investigations have taken place, even if a claim cannot be established, it should give you answers about what happened and why.
• If you are able to establish a claim, then you will receive compensation and, in some circumstances, you may be offered a ‘letter of apology’ and/or there may be a change in procedures as a result of your claim to ensure what has happened to you will not repeat itself.
• From our experience of dealing with these types of claims, we are also able to signpost you to other organisations, charities or provide advice that can assist you to deal with the problems that can be encountered following medical treatment.

What will happen when I make a medical negligence claim?

After we have taken some information from you, we will ask the treatment providers (usually your GP and hospitals) to provide us with copies of your medical records. Once received, our specialist nurses will review your medical records and they will look for evidence of care that might have been negligent, and whether any incidences of negligence have caused the symptoms and injuries that you have brought the claim about.

If the nurse is of the opinion that there may have been some negligent treatment then we usually will instruct an independent medical expert to consider your medical records and prepare a specialist report. Depending on the type of case, we may need to instruct several medical experts to comment on different aspects of your treatment.

If the expert evidence is supportive of a claim for medical negligence, we will then prepare a letter of claim for you to approve before sending this to the defendant. The letter of claim sets out in detail why we are of the opinion there has been negligent treatment and what harm this has caused.  We should also be able to include within the letter, an offer to settle your claim.  We will also investigate details of any financial losses you may have incurred as a result of the negligent treatment.

The defendant then has four months to investigate your claim and provide us with a formal response.

You may need to undergo a medical examination with an independent expert, depending on the circumstances of your case, and we will make all the necessary arrangements for you.

If the defendant admits that the treatment you have received is negligent and this has caused you harm, we will make attempts to negotiate settlement of your case.  If the defendant denies any wrongdoing or that there has been no additional harm caused then we will ask your independent expert(s) for their comments and provided they remain supportive of your claim, we will then start court proceedings and ask the court to make a decision as to whether the defendant was responsible and if so, to what extent and what compensation should be awarded to you.

Is 'no win no fee' funding available for medical negligence claims?

Most of our medical negligence claims are funded by way of a ‘no win, no fee’ agreement (also known as a conditional fee agreement or a CFA) and we would be happy to provide a free assessment to determine whether your case is eligible.

Our specialist medical negligence solicitors are very aware of the importance of our clients being fully informed and advised throughout the legal process, and especially in relation to funding. As such, you will have access to an appointment with a Solicitor to discuss a ‘no win, no fee’ agreement before you are required to sign.

Ultimately, we do not require any payments upfront and the general rule is that you do not pay anything if you lose.

We are only paid if you win. To recognise this risk, we will take a ‘success fee’ from any fee awarded, capped at a maximum of 25% of your compensation (and excluding any compensation you are awarded to assist you in the future). However, please be rest assured that a settlement will not be reached, or proposed, unless you are fully aware of the amount of money that you will ultimately receive in your hand.

Will I need to have a medical examination when I make a medical negligence claim?

This will depend on the nature of the medical negligence claim that is being made. In some cases a medical negligence claim can be conducted by reference to your medical notes and records, without the need for a medical examination.

It is unlikely that during the initial investigations into your claim that you will require a medical examination.  If the expert is supportive of a case for clinical negligence then he or she may need to examine you to consider your current medical condition and/or your future prognosis. This will enable us to accurately value your claim for compensation and assess what additional care needs or other assistance you may require.

If you are required to undergo a medical examination then this will be carried out by an independent medical expert. In most cases the examination will take place in person but in some cases the medical expert would be able to complete a medical report following a conversation with you on the telephone.

If it became necessary for you to undergo an examination in person then this is usually carried out at your convenience. A mutually convenient appointment would be arranged and you would usually attend an appointment at the medical expert’s consulting rooms. Where it is not possible to travel to the expert’s consulting rooms, or where the expert needs to examine you in your home environment, then the appointment would take place at your home address or at an address more convenient to you.

If you have any concerns regarding a medical examination then these would be discussed with ourselves and the medical expert in advance. It is usually the case that arrangements can be made which suit all parties involved.

Can I make a claim against the NHS and private hospitals?

Hospitals should be a safe place to go when you are injured or need treatment. However sometimes the care provided isn’t to the standard we expect and it can even be the case that additional injuries are caused. Serious errors can occur causing brain injuries, misdiagnosis and delays in diagnosis, injuries during childbirth and more.

Every medical practitioner owes a duty of care to their patient so when standards fall and injuries are caused, it is possible to make a claim for compensation. The standards expected of private practitioners such as private doctors and nurses are exactly the same as would be expected of those working within the NHS. Unfortunately, the fact that the treatment has been paid for does not necessarily mean that you will receive a higher standard of care. You can therefore bring a claim for compensation for injuries sustained regardless of whether the treatment was paid for privately or carried out under the NHS. The process is similar for both and the main key difference in pursuing a claim for compensation against a private hospital is that you may have additional grounds to make a claim on the basis you may have entered into a contract that provides for an expected outcome. 

Our specialist solicitors will be able to advise you on whether you have a claim for compensation and against whom the claim can be made.  It can often be the case that multiple parties are pursued and compensation is paid by more than one hospital or practitioner.