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Guide to making a medical negligence claim

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Posted by Jeanette Whyman on 14 May 2013

Jeanette Whyman - Medical Negligence Solicitor
Jeanette Whyman Partner - Head of Medical Neglience

Our medical negligence solicitor Jeanette Whyman guides you through how to make a medical negligence claim.

Making a complaint

Consider making a formal complaint to the hospital or doctor about the treatment you have received in the first instance. It is often the case that people who feel let down by the medical profession need an explanation of what went wrong and an apology. A formal complaint is straightforward and we can help you draft it.

If you have been so badly affected by your treatment that you need financial support, then bringing a legal claim for medical negligence may be your only option.

Bringing a legal claim: time limits

  • Under normal circumstances, you must bring a claim within three years of the date of the injury (or death) or from when you first became aware that your injury was due to medical error.
  • There are exceptions but we can advise you as necessary.
  • Time limits do not apply to children who can lodge a claim at any time up until their 21st birthday, or to adults suffering from mental incapacity.

Funding your claim

The most common phrase you'll hear is 'no win, no fee'. There have been a number of recent changes to the way in which claims can be funded. We will discuss all the options listed below in detail with you: 

  1. Legal expenses insurance: you may be covered under your home, car or other insurance that will pay for all or some of your costs.
  2. Conditional Fee Arrangement: We can take on your case on a ‘no win, no fee’ basis.
  3. Legal Aid: public funding is now only available for claims involving birth-related brain injuries in babies.
  4. Private funding: you can fund the cost of the claim yourself.

Establishing your claim

We will assess your claim using three criteria:

  1. 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 and caused harm;
  2. You were injured or received a worse than expected outcome; and
  3. The injury you received was as a result of a ‘breach of duty’. Your chances of success will depend on the extent of the breach of duty and the harm caused. Based on this and on independent medical opinions, we can advise you whether or not your claim is sufficiently strong to proceed. 

Going to court

  • Pre-action protocol: A Letter of Claim sent to the Defendant (the person or organisation against whom the claim is being made) setting out the allegations. 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 in either the High Court or County Court. The procedure is straightforward and requires exchange of evidence and an assessment of the likely value of the claim. If the latter is high or involves a minor, it might be dealt with at a later date.
  • 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. It is also possible that your claim will settle out of court. We can guide you through this process.

Next steps

  1. Record as many details about the medical treatment that you can remember and the effect your injuries have had on your everyday life.
  2. Keep all relevant documents
  3. Record all related expenses
  4. 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. 

About the author

Jeanette Whyman

Partner - Head of Medical Neglience

Jeanette is head of the medical compensation team, specialising in medical negligence and personal injury claims.

Jeanette Whyman

Jeanette is head of the medical compensation team, specialising in medical negligence and personal injury claims.

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