Making a clinical negligence claim is a complex process and often requires the input of numerous medical experts. It can therefore feel daunting if you are thinking of making a claim and you may have lots of questions. We have answered some of the frequently asked questions below, but if you think you have a claim then please dp contact our specialist team on:
What is a Clinical Negligence claim?
Clinical negligence claims arise when a medical practitioner (such as a doctor, nurse, midwife, or dentist), or an institutional health provider (such as an NHS or Foundation trust), provides care and/or treatment to a patient which falls below the minimum standard expected from the medical professional causing the patient to suffer injury or illness.
Clinical negligence claims can arise in the following scenarios:
- Failure to properly examine a patient
- Failure to properly diagnose a condition
- Misinterpreting results of tests, for example failing to read an x-ray or scan correctly
- Leaving foreign objects in a patient’s body during surgery
- Other mistakes during surgery such as amputation of the wrong limb
- Providing negligent treatment
- Errors when dispensing prescriptions
- Providing inadequate care to the patient generally, for example, antenatal care, or care after surgery
What do I have to prove to succeed with a clinical negligence claim?
In order to succeed with a clinical negligence claim, you have to establish three things:
- that you were owed a duty of care by the medical practitioner/provider. This is unlikely to be a matter in dispute as it is clear that a doctor, nurse, midwife or other medical practitioner owes a duty of care to their patients;
- that the duty of care was breached by the medical professional. You would specifically need to show that the care and/or treatment you received fell below the minimum acceptable standard from a medical professional; and
- that this directly caused you to suffer injury, illness or worsening of an existing condition. This is known as ‘causation’.
If it is established that the care and/or treatment you received fell below the minimum acceptable standard expected from a medical professional, you could be entitled to claim compensation.
How much compensation will I receive?
If the other party accepts responsibility for your injury or illness, then you will be entitled to compensation, i.e., you will be entitled to general damages for pain, suffering and loss of amenity (compensation for your injury) and special damages, covering any financial losses you have incurred as a result of your injury or illness.
To enable us to advise you regarding the likely level of compensation you should expect to receive in respect of your injury or illness, it is usually necessary for us to obtain evidence from an appropriate medical expert on the severity of your injury (and any complications) and recovery times.
With regards financial losses you may have suffered as a result of the accident, these could include but are not limited to: loss of earnings (past and future), the cost of private medical and rehabilitation treatment, the cost of care and any necessary adaptions to your home, and any other future costs you may incur.
Will I need a medical examination if I make a clinical negligence claim?
Yes, in the majority of clinical negligence claims you will need to undergo an examination with an independent medical expert, who will examine you and prepare a report outlining your injury or illness (any complications), whether you require any further treatment and how long you will take to recover. The expert will also require access to your full medical notes and records.
The type of medical expert will depend on the injury/illness you have suffered and you may need to attend more than one examination if you have suffered a serious or complex injury/illness.
Can I bring a clinical negligence claim on behalf of a child?
Yes, if your child has suffered an injury as a result of clinical negligence you can make a claim on their behalf. When someone (usually a parent or guardian) makes a claim on behalf of a child, they’re known as a ‘litigation friend’.
The process for bringing a claim for a child is different to a claim for an adult and the time limit for doing so is too. Further detail about time limits for bringing a child’s claim is set out under ‘How long do I have to bring a clinical negligence claim?’
Can I bring a claim on behalf of someone else?
You may be able to bring a claim on behalf of someone else (for example a friend or family member) depending on the circumstances.
If the injured person lacks the mental capacity to bring a claim, for example due to a brain injury, a mental illness, or an illness such as Dementia or Alzheimer’s, you may be able to act on their behalf under the Mental Capacity Act 2015. The same as with a child’s claim, you would act as the ‘litigation friend’ of the protected party and conduct the claim on their behalf, making decisions in their best interest.
How can I fund my claim?
We will be able to discuss with you the various options you might have regarding funding your clinical negligence claim.
It may be that you have legal expense cover under your home or motor insurance which could provide funding towards your legal costs and experts’ fees. You may also have similar funding available through your bank or credit card, or via a trade union so it is important to check your existing policies to ascertain whether you have the benefit of legal expense insurance before pursuing your claim.
If you do not have the benefit of legal expense insurance then, depending on the circumstances and the expert’s view on the prospects of your case, we may be able to act for you under a conditional fee agreement which is commonly known as a ‘no win no fee’ agreement.
What is a ‘no win no fee’ agreement?
A ‘no win, no fee’ agreement is a funding arrangement between you and your solicitor. It means that if your claim is unsuccessful, you will not have to pay your legal costs (i.e., the fees you have incurred with your solicitor), as long as you have met the terms of the agreement and acted reasonably. If so, the only fees you would be responsible for are the cost of any disbursements and third party expenses.
If your claim is successful, the majority of your legal costs are paid by the other party or their insurers in addition to your compensation. Any shortfall in your legal costs and any success fee payable (a fixed percentage solicitors can charge if the claim is won) will be paid from your compensation payment.
What is ATE Insurance?
After the event (ATE) insurance is a type of legal expenses insurance (taken out after an accident or incident has occurred) which provides cover for the costs associated with bringing a claim and which are incurred throughout the process, e.g., legal fees, experts’ fees, Court fees and other disbursements.
A premium is payable for the policy (the cost of which is dependent on the circumstances of the claim). Payment of the premium is usually deferred, i.e., paid upon the successful conclusion of the claim.
If we are able to act for you under a ‘no win, no fee’ agreement we can also assist you with obtaining estimates for ATE insurance.
How long do I have to bring a clinical negligence claim?
If you believe you have a clinical negligence claim, it is best to seek legal advice as early as possible due to the statutory time limits in place.
The time limit for bringing a clinical negligence claim depends on the circumstances of the case, but generally you have three years from the date of the incident causing injury or illness occurred or, from the date you became aware that your injuries were caused by negligence (if later) to bring a claim. The latter can occur where an event happened that caused damage many years previously, but the damage was only recently discovered. The claimant could not have brought a claim until they had knowledge of the damage.
There are exceptions to this rule, including claims involving children, claims brought on behalf of someone who has passed away, claims under the Human Rights Act, and if the negligence occurred abroad. It is therefore important to seek legal advice as early as possible to ensure the limitation period has not expired.
In claims involving children, the three-year time limit will not commence until the child reaches the age of 18. A parent of guardian can bring a claim on the child’s behalf before they turn 18 as explained above.
How do I make a clinical negligence claim?
If you are considering bringing a clinical negligence claim, please contact a member of our specialist team who will be able to talk through your claim with you. Contact our Personal Injury and Clinical Negligence Team via 01603 610911 or email email@example.com.