Ever wanted to know more about raising a medical negligence claim? Perhaps you think you may have a case, or someone close to you is suffering from injuries resulting from medical treatment or care – if this sounds like you, this article may be of interest.
Here is a series of answers to the most commonly asked questions about Medical Negligence Claims, compiled by our specialist team of medical negligence solicitors.
What is a medical negligence claim?
Millions of people are treated every year by the NHS and in private healthcare. Doctors, nurses, dentists and other healthcare professionals treat patients successfully. They do not intend to deliberately harm a patient but sometimes things can go wrong.
When it does go wrong, most people want to know what happened and assurance that steps are taken so it does not happen again. But in some cases, the consequences can be devastating and sometimes life-changing.
If someone has suffered harm as a result, they may need compensation to pay for the care and treatment they need. In such a case, a medical negligence claim may be able to provide that compensation.
What sort of injuries are relevant to a medical negligence claim?
Any impediment to your physical or mental health, caused by medical negligence, could be cause to make a claim. Your injury may be as a result of any of the following:
- Negligence during pregnancy, childbirth, or postnatal care leading to complications for the mother or injury to the child including brain injury, cerebral palsy
- Failure or delay in diagnosis
- Delayed or incorrect treatment
- Surgical errors such as retained instruments inside the body, operating on the wrong part of the body, or causing additional injury during surgery
- Failure of GP to refer patient to a specialist when necessary
- Failure to carry out vital tests at all or on time
- Failure to properly monitor patient’s progress
- Medication errors; wrong dose or wrong administration
- Prescription errors
- Accident and Emergency; failure or delay to diagnose, treat or refer
- Orthopedic claims; failed hip or knee surgery, failure to diagnose or treat broken bones
- Failure to diagnose or misdiagnosis
What do I have to prove to make a claim for medical negligence?
In order to make a legal claim, you have to prove 4 elements.
- The health care provider, i.e doctor, nurse or hospital owed the patient a duty of care.
- There was a breach of duty of care.
- That the breach caused an injury or loss, known as causation.
- The injury must be reasonably foreseeable
You have to prove all of these for your claim to succeed. More detail about each can be found below.
Duty of care
A health professional owes a duty of care to their patient. This can usually be established if a health professional agrees to treat a patient, they will owe a duty of care.
Breach of duty – negligence
Breach of duty is often referred to as negligence or liability. Whether or not there has been a breach of duty is based on what is done in practice. It is measured on whether a reasonably competent health professional would have acted in the same way. A health care provider has a duty to provide a reasonable standard of care. To prove negligence it is necessary to show that the treatment fell below that reasonable standard.
Not all injuries are a result of a breach of duty. Some injuries occur which are a known risk such as getting an infection. You may have signed a consent form telling you what the risks are.
Causation
If there is a breach of duty, you have to show it directly caused or contributed to an injury.
Who can I make a claim against for medical negligence (NHS, a hospital, a private doctor etc)?
You can make a claim against any healthcare professional who has provided you with care – including private practitioners, private hospitals, or health professionals and facilities that are part of the NHS.
Many people feel guilty about the idea of suing the NHS because it is a beloved institution here in the UK, and is quite literally a ‘lifesaver’. People are sometimes concerned that making a claim or complaint may impact their future care. It should not affect your future care and making a claim or complaint can actually assist in identifying risks and where improvements in healthcare can be made.
There are few differences between making a claim against the NHS and making a claim against a private practitioner. If you’ve received private care, you will need to prove the claim against each care provider; if you’ve received care from the NHS, the claim is made solely against that NHS Trust.
If I decide to make a medical negligence claim, what is the process?
Whilst each case is different, the legal process for making a claim for medical negligence is complicated – which is why it’s important to seek advice from a specialist who is accredited by the Solicitors Regulation Authority for Clinical Negligence.
After your initial conversation with your solicitor, they will advise you whether there could be a reasonable claim to be made. From that point, you can decide if you’d like to go forward with the claim.
Then, your legal team will begin to collate evidence, gathering more detail from you, collating health records and other documentation that may support your case. Don’t worry if you don’t have these records to hand – they can be gained from the hospital or healthcare provider.
Your solicitor will also delve into the impact the negligence has had on your life; in terms of physical and mental health, your finances, ability to earn and relationships with others.
Your solicitor will notify the opposing party that you are making a claim for medical negligence. Evidence is exchanged and if your case does not settle formal proceedings will be issued in court. Your case will proceed to trial but may settle at any point throughout the process.
In either case, your solicitor will aim to get the best possible outcome for you.
How much does it cost to make a claim?
Your solicitor may offer to deal with your case on a ‘no win, no fee’ agreement, meaning you do not have to provide initial funding.
If your claim is successful then basic costs such as solicitor fees are paid by the losing party. You may still be liable to pay for some disbursements such as costs of obtaining medical reports, counsel’s fees etc if these turn out not to be supportive of your claim. Your solicitor will provide you with details of how this applies in your case.
How much compensation can I get for medical negligence?
The level of compensation, sometimes referred to as damages, depends on the severity of your injury and your financial loss. There are two elements; general damages and special damages.
General damages are awarded based on the severity of your injury for pain and suffering.
Special damages include expenses such as loss of earnings, care and equipment.
How long after the incident should I make a claim?
There is a time limit for commencing Court actions in medical negligence cases. This is known as the “Limitation Period”. The time limit to commence a Court action is 3 years from the date of the negligent treatment or 3 years from the date you realised that you have suffered an injury. This is known as the “date of knowledge”. If you fail to issue Court proceedings within the limitation period you may be prevented from pursuing your claim.
There are some limited exceptions where the time limit may vary or be waived by the court, such as lack of mental capacity, minors under the age of 18 years who have 3 years from your 18th birthday to make a claim, or some other exceptional circumstances.
The beginning of your claim to settlement can take several years to complete. This will depend on the nature of the claim, severity of the injury and whether the injury has settled down, whether the claim is disputed and whether it proceeds to Court.
The majority of medical negligence claims take up to 3 years to settle. Complex claims and severe injuries can take much longer.
What should I do if I think I may have a case for medical negligence?
The first step is to contact a specialist solicitor and talk to them about your claim.
Our medical negligence experts at Prosperity Law understand that navigating a claim can be incredibly challenging. We’re committed to providing compassionate support and guidance every step of the way. If you encounter any difficulties, please don’t hesitate to reach out to our team. We’re here to help you through this process.
As a victim of medical negligence, you know that dealing with the consequences and injuries can be devastating. But there are also emotional challenges presented by pursuing a claim, such as the requirement to relive a traumatic experience. If you or someone close to you has suffered medical negligence, we understand that you may need emotional support in addition to legal representation – we recognise the person behind the claim.
If you are suffering as a result of medical negligence, Prosperity law are accredited by the Solicitors Regulation Authority for clinical negligence and our specialist solicitors are ready to discuss your case. If you’d like to have a confidential discussion about your circumstances, get in touch with Jane Lynch by emailing jane.lynch@prosperitylaw.com or call 0151 909 9122.
