2020-06-03
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Making a medical negligence claim - 20 things you need to know

Home / Knowledge base / Making a medical negligence claim - 20 things you need to know

Posted by Jeanette Whyman on 01 June 2020

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

It may feel scary or uncomfortable to consider bringing a medical negligence claim against the people who are supposed to be caring for you and your health but sometimes that step needs to be taken. This might be because you have been left in pain following treatment or unable to work. 

We know that the mere thought of dealing with a solicitor is often enough to make people hesitate (but, we’re OK really!). However, with our experience and guidance, we can make the process straightforward and help ease the stress in what can be an emotional process.

Here are a few points it would be useful for you to know before deciding to claim for clinical negligence. 

1. What is medical negligence?

In the UK, it’s known as clinical or medical negligence. In the USA, it is referred to as medical malpractice. It all means the same; it is where a medical or healthcare professional has failed in their duty of care. This lack of care has resulted in harm or injury to the patient. 

2. What isn’t medical negligence?

If you are concerned about some issue other than medical or healthcare treatment, then this won’t be classed as medical negligence. If for example, a doctor’s receptionist was rude to you, this may not be the basis for a claim, but there are other routes to explore, such as bringing a complaint

3. What are the time limits to claim?

Time limits do vary depending on the nature of the case and the age of the patient. However, under normal circumstances, a claim must be made within three years of the patient becoming injured or within three years of the date they became aware of the injury, known as the ‘date of knowledge’. 

Date of knowledge

In many cases, the negligence is not apparent until a much later date. For example, investigations may not have been correctly reported, which causes a delay in the patient knowing the exact cause of their illness. It might also be that the procedure has not been fully explained or because of a hospital investigation into a medical professional for similar issues. Some of these cases attract media coverage, like the case of the breast surgeon Ian Paterson, many of his victims were unaware. In these instances, patients have three years from the date they became aware of the negligence – the date of knowledge. 

4. When might time limits be different?

The exceptions to this rule are:

Children

The clock starts ticking on the 3-year time limit when a child reaches the age of 18, giving a child until their 21st birthday to bring a claim. This is to allow them to make to pursue their own claim for negligence should they wish to. The negligence can have occurred at any point during their childhood. 

Mental capacity and illness

In cases where the patient has a mental illness and lacks mental capacity, particularly if this has been caused by brain damage, they are seen as a ‘protected party’, and as such, there is no immediate time limit to their claim. In these instances, either a Litigation Friend could pursue the case on their behalf, or if they were to recover from the mental illness, there would be a 3-year time limit from the date of recovery. 

Death

If the patient dies as a result of negligence, the family of the deceased have three years from the date of death to make a claim. If the patient dies while making a claim, the family still have three years from the date of death to pursue the claim on their behalf. 

5. Finding the right lawyer

It may seem odd for a law firm to encourage you to find the right lawyer for you, but it is essential. It is essential to use a specialist solicitor who has demonstrable experience in dealing with clinical negligence cases. We’d suggest avoiding claims management companies and dealing directly with a lawyer. If you are unsure, please use the Law Society website to search for a relevant professional who is accredited with the Law Society Clinical Negligence Panel

6. What will your lawyer do for you?

A qualified and experienced solicitor will be able to tell you if they think you have a valid case for claiming compensation against a medical professional. They can explain why you may or may not have a case and advise you how they might take the case forward for you. They can also guide you through the legal process, the timeline, discuss your options with you and answer any questions you may have. 

7. Will I need to go to court?

Don’t worry; there probably won’t be one! Most cases for medical negligence are settled before they go to trial. The likelihood is once all the evidence is gathered and the case details sent to the other side, the defence will come back with a financial offer to settle. 

8. But I want to go to court?

Depending on the specifics of your case, there is a chance your case may go to court. However, this is something your solicitor can prepare you for in full, so you know exactly what to expect on the day. 

9. It’s not just the NHS.

Although when we think of medical professionals, we automatically assume they are the NHS, many other medical and healthcare professionals can be held accountable if they fail in their duty of care. Doctors, nurses and other healthcare providers whether employed by the NHS or working privately, can make mistakes.

10. Healthcare providers come in all shapes and sizes.

Healthcare providers include dentists, ophthalmologists, cosmetic surgeons, physiotherapists, psychologists, counsellors and private care professionals. If you have been harmed or injured by any healthcare professional, you may still have a right to claim. 

11. Do I have to pay?

Legal Aid is no longer available for medical negligence cases except in limited circumstances involving birth injuries. However, there are many funding options available to you. A solicitor can work with you to determine the best one for your individual case. 

12. I don’t want to be left with a bill if the case doesn’t win.

As a brief overview, the options are:

No win, no fee

The majority of the cases we take on are on a no-win, no-fee based, or to use its technical term, a conditional fee arrangement. Usually, this means you won’t pay if your case does not succeed. Your solicitor can advise you of how this works.

Legal expenses insurance 

If you have home, car or any other type of insurance, your insurance may cover legal expenses for some or all of your claim. 

Private funding

If you have the finances available, you can pay the cost of the claim yourself.

13. Documents to keep

We highly recommend you keep records of everything to do with your case, your injury or condition. This includes doctors’ letters, official documents, appointment notes and records relating to your expenses. We also strongly advise you to keep your own detailed records outlining your treatment, the effect the injury has on your day to day life and any assistance you need with your care. You can never have too much detail. Your medical negligence lawyer will help you collate this. 

14. I want to see my medical records.

If you would like to see your own medical records, you can request these from any healthcare provider under data protection legislation. Any providers should send you copies of your records within a calendar month of receipt of your request.

15. Proving your case

Early on in your case, your solicitor will request your medical notes from the medical or healthcare professional. These will be read and analysed by the legal team to determine your situation. The medical notes are the basis of the claim together with your recollection of events which will be recorded as a statement.

16. Calling for back-up

The relevant details from your case are then analysed by independent UK medical experts to give an analysis and expert opinion on whether there was a breach in the duty of care and if the treatment was negligent or fell within an acceptable standard. This is an essential step in proving the case for medical negligence. 

17. Timescales

There is no set timescale for clinical negligence cases, but as a rule, the entire process takes between 18 months and three years. It can be longer, depending on the complexity of the case. 

18. Essential timescales

Your case must be issued within three years, as explained above. ‘Issuing ‘means lodging details of your claim with the court. If this date is missed, it is challenging to pursue a case. This is why it is so important to instruct a solicitor and progress your claim without delay.

19. The value of a claim

Understandably, people want to know the value of a medical negligence claim. There are no set figures because the amount you are awarded takes into account many factors, however, our medical negligence compensation calculator will give you an idea on the value of your claim.

The final value of your claim will be dependent on many factors; these include pain and suffering, your loss of earnings and loss of any future earnings. 

20. What now?

We know if you are considering claiming negligence, it is a sensitive and challenging time. The two most important things to take away are: choose a solicitor you can trust who can guide you through the process and support you at every turning point; and don’t hesitate – the time limits are strict and if you are thinking of taking the next step, seek advice without delay. 

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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