Please note the different time scale for making a complaint, as explained above.
Establishing your claim
The chances of establishing a successful claim will depend on proving a breach of duty of care occurred and this breach of duty of care caused harm – and this is the basis on which we can advise you whether your claim is sufficiently strong to proceed. Expert medical evidence will be requested from an independent doctor or specialist which will help prove your case. We will assess your claim using three criteria:
- The healthcare provider must be guilty of a ‘breach of duty’. This means that the care you received fell short of what is deemed acceptable (which broadly means that a reasonable body of medical opinion agrees that the action taken was not of the standard expected);
- You were injured or received a worse than expected outcome; and
- The injury or damage caused was as a result of the ‘breach of duty’.
Making your claim
Given the high standard of proof required to determine medical negligence, many claims do not succeed. However, of those that do succeed, the majority settle before reaching court. However, there is a legal process to be followed which may, but usually doesn’t, end in a court hearing:
- Pre-action protocol: After taking full instruction from you, obtaining copies of your medical records and commissioning expert medical evidence, a Letter of Claim sent to the Defendant (the person or organisation against whom the claim is being made) sets out the allegations of negligence. The Defendant must reply (a Letter of Response) within four months. This reply will decide whether or not to instigate court proceedings.
- Court proceedings: A claim is issued (legal documentation setting out your case is placed with the Court) in either the High Court or County Court. The procedure follows a path laid down by the Court rules and requires exchange of your evidence which will include a statement from you and expert medical evidence.
- Trial: Once the evidence has been assessed and the parties have negotiated on the issues involved, the claim can go to trial which should take place within 12 to 18 months of the claim being first issued. The judge will decide at this stage if your claim will succeed or not.
- Personal representative / Litigation Friend: You can bring a claim on behalf of a family member if they are a minor, unable to represent themselves or deceased.
Valuing your claim
The value of your claim will depend on a number of issues including pain, suffering, loss of earnings and likely future losses (such as care requirements). Your compensation will be made up of ‘general’ damages relating to pain, suffering and loss of enjoyment of life and ‘special’ damages relating to past and future financial loss, such as loss of wages and the cost of care. We can advise you on how your compensation is likely to be assessed.
Compensation for a child will be put into trust for them to access once they turn 18. The court can authorise the release of funds for necessary purposes such as specialist treatment or education.
It is crucial to record as many details about the medical treatment you received and that you can remember and the effect your injuries have had on your everyday life. In addition:
- Keep all relevant documents
- Record all related expenses
- Keep a ‘care’ diary to record the time either that you spend looking after a family member who is the victim of clinical negligence or that family members spend looking after you
Early Notification Scheme
This scheme was set up in 2017 specifically to support families whose baby has suffered an otherwise avoidable brain injury following a mismanaged labour and / or birth. Under the scheme, it is compulsory for Trusts to notify NHS Resolution within 30 days of the birth of any baby diagnosed with a severe brain injury within the first 7 days of their life as a result of a mistake made at their birth. Any claim must be made within 18 months of the injury.
The scheme is designed to provide families with:
- A detailed explanation of what happened.
- An apology.
- A recommendation to seek independent representation where an entitlement to compensation has been identified.
- Prompt financial support to help with equipment, therapies and, in some cases, accommodation.
- Psychological support.
There are many excellent, dedicated doctors who regularly make judgments based on their experience; very occasionally they will make a wrong call resulting in a tragic outcome. But this does not mean that they will face a negligence claim – in most cases there will be no case to answer because a reasonable body of medical opinion will concur that they would have made a similar decision. Where negligence claims will succeed is where the reasonable body of medical opinion agrees that the action taken was not of the standard expected.
Taking a claim forward as a patient takes stamina and perseverance. In my experience, people will only come to me as a last resort – and I will only take on their claim if it has merit: more than 85% of our initial enquiries from patients unfortunately cannot be progressed (and these in turn represent a very small minority of patients who have been treated). When it comes to medical mistakes negligence is rarely the reason for making a wrong decision. However, where there has been a clear failure to follow accepted procedures and negligence is a factor, there is an established process to follow.
If you have any concerns about any aspect of your treatment, I am happy to have an initial discussion to see whether or not we can help.