Guide to Clinical Negligence Claims
The information set out below is for information purposes only. It is not intended to be, nor does it constitute, legal advice. You must seek independent legal advice on the specific circumstances of your claim.
Introduction
It is important to keep in mind that just because something has gone wrong with the medical treatment that you have received, it does not always mean that someone has made a mistake or that someone is to blame. In some cases errors and complications arise as unavoidable risks of the treatment that is being provided meaning that the healthcare professional would not be considered to blame.
Negligence is the breach of a legal duty of care owed to one person by another which results in damages being caused to that person. Medical negligence is concerned with claims against healthcare providers. In order to succeed in a claim for medical negligence, a claimant must prove that:
- The healthcare provider owed a duty of care to the claimant;
- There was a breach of that duty of care;
- The breach of duty has caused harm to the claimant; and
- Damage or other losses have resulted from that harm.
Success in a medical negligence claim will result in an award of financial compensation. The court cannot compel a healthcare professional to apologise, to change their working practices or discipline the individuals concerned. However, healthcare providers will often offer an apology if they admit liability for a claim.
The injury needs to be serious enough to ensure that it is worthwhile incurring the costs of making a claim for compensation. Situations where you have suffered a minor injury from which you enjoyed a complete recovery within a few days/weeks may not be worth pursuing.
Whilst we offer a professional and empathetic service, you must prepare yourself to discuss the events in your claim and these reminders may cause you additional upset and distress.
What should you do immediately following a medical accident?
If you are the victim of a medical accident, your health and wellbeing are of paramount importance. You must ensure that you are receiving the correct treatment and support, which may involve being referred for a second opinion or securing advice from friends, family or support groups. If you are unable to work because of the medical accident, you should seek advice about your entitlement to state benefits and ensure that you engage with your employer during any periods that you are unfit for work.
Once you have secured your position you can begin to investigate the legal liability for the medical accident.
How do you prove your medical negligence claim?
A claim for medical negligence damages will only succeed if you can prove that the conduct of the healthcare provider would not have been approved of by any responsible body of opinion in that discipline at that time.
It is therefore a defence for the healthcare provider to show that they acted in accordance with a practice rightly accepted as proper by a responsible body of medical people skilled in that particular field. This defence will succeed even if something went wrong with your treatment. Therefore your claim will fail if the healthcare professional can show that they complied with an accepted medical practice.
We therefore need to prove that no responsible healthcare provider would have treated you as this one did. We will need to secure a report on the medical issues in your claim from an independent medical expert skilled in the particular kind of treatment that you received. If that report confirms that you were the victim of medical negligence, you will also need to prove, with the benefit of further independent expert input, that it was this negligence which caused the harm or loss that you went on to suffer if your claim is to result in an award of financial compensation.
What financial compensation could you claim?
Damages for medical negligence claims are intended to put the claimant into the position they would have been in if the negligent act had not occurred. The losses must be a reasonably foreseeable consequence of the negligence if they are to be compensated in damages.
If your claim succeeds you would generally be entitled to both ‘general damages’ and ‘special damages’.
General Damages
General damages compensate for the pain, suffering and loss of amenity caused by the negligence.
This head of loss can include compensation for:
- Physical injury
- Psychological injury
- Loss of life expectation
- Loss of the enjoyment of pre-negligence life including interference with sex life, holidays and hobbies
- Disadvantage in the open labour market where injuries caused by the negligence make it difficult to obtain another job
General damages are assessed by reference to published guidelines called the Judicial College Guidelines and previous awards in similar cases.
Special Damages
Special damages are capable of being calculated and are your financial losses from the date of the medical accident up to the date of settlement or trial. Most claims will focus on past special damages, but more serious injuries will normally entitle a claimant to claim future losses beyond the date of settlement or trial.
This head of loss can include compensation for:
- Loss of earnings
- The cost of care and assistance
- The cost of replacement services that you would have done yourself but for the medical accident
- Treatment costs
- Increased living costs
- Loss of pension entitlement
- The cost of aids and equipment
In bereavement cases it is possible to claim funeral expenses and the cost of a headstone or other form of modest memorial.
You are obliged to mitigate your losses, meaning that you must act to keep losses to a minimum. This means that any loss or expense must be referable to the injuries sustained from the negligence, and you must return to work if you are capable of doing so.
Compensation in Fatal Cases
Where the victim of medical negligence has died, the personal representative of the deceased’s estate can bring or continue the medical negligence claim to recover those damages that the deceased could have claimed.
The personal representative is required to prove their entitlement to act on behalf of the deceased’s estate so they must secure either a Grant of Probate, where the deceased left a will, or Letters of Administration, where the deceased died intestate, before the claim is commenced. The relevant application can be submitted directly to the Probate Registry. Our Private Client team can provide you with any assistance that you require in applying for a Grant of Representation.
Damages will fall to be distributed in accordance with the deceased’s will or the intestacy rules if the deceased did not leave a will.
The deceased’s dependents can bring claims through the personal representative for their loss of financial dependency on the deceased.
Finally, the spouse or civil partner of the deceased, the parents of a legitimate unmarried deceased minor, and the mother of an unmarried illegitimate deceased minor can claim bereavement damages, current fixed at £15,120.
‘Full and final settlement’ and Periodical Payments
The vast majority of medical negligence claims are concluded with damages being paid in one lump sum in full and final settlement of the claim. This means that you will not be able to seek any further compensation from the defendant in the future in relation to the negligence.
In some cases where a claim is made for a lifetime loss and/or substantial ongoing care needs, a periodical payments order may be appropriate. You will be notified if your claim is suitable for a periodical payments order.
Who is the Defendant?
If your claim arises from treatment that you have received in an NHS hospital, the hospital trust will be the defendant rather than the individual healthcare professional who treated you.
If you claim is against a GP or a dentist, the defendant will be the individual healthcare professional. If you are receiving ongoing treatment from the defendant, your treatment should not be impacted by your claim and the healthcare professionals should not discuss the case with you.
How soon should your claim be started in Court?
Strict time limits apply to medical negligence claim. The claim must be started in court within three years of the date of the medical accident. The three year time limit starts from either:
- The date when you had your medical accident or the treatment that caused your injury; or
- The date of knowledge of facts sufficient to bring a claim
The date of knowledge is intended to allow someone who failed to start their action in time to proceed in circumstances where they were unaware that they had been injured as a result of negligence. The date of knowledge is the date on which a person first had knowledge of the following:
- That the injury in question is significant;
- That the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence; and
- The identity of the defendant.
If the injured person dies before the expiry of the appropriate three year period, the proceedings have to be started in court within three years of the date of death.
If the injured person is a minor (those under the age of 18), the three year period starts to run from their 18th birthday.
If the injured person lacks capacity, the three year period starts when the person ceased to be under a disability or died.
Failure to issue the claim in court, or to agree an extension with the defendant, will mean that the claim becomes statute barred and no further action can be taken in relation to it.
In exceptional circumstances the Court may use its discretion to disapply any of the above time limits when it is fair to do so.
What funding options are available for my case?
The available funding options are:
1. Private Retainer
You may instruct us on a privately paid basis.
2. Before the Event Legal Expenses Insurance
This is a form of insurance which is often added on to a household insurance policy. You must check all of your insurance policies to see if any of them include legal expenses cover for personal injury or medical negligence claims.
If you have cover in place you will need to provide us with a copy of the insurance policy schedule as soon as possible so that we can assist you with submitting a detailed claims report to your insurer. Insurers have strict time limits for claims reports to be submitted.
If your insurer is satisfied that your claim enjoys reasonable prospects of success it will usually indemnify your legal costs up to the policy limit.
Your insurer may attempt to force you to use one of its panel solicitors. The Financial Ombudsman Service has decided that in complex matters, such as medical negligence cases, the insured should have the freedom to choose their own solicitor.
3. Conditional Fee Agreements – “no-win, no-fee agreements”
If your claim enjoys good prospects of success, and if no other form of funding is appropriate, we may offer to act under a Conditional Fee Agreement.
If your claim succeeds, we will charge a success fee. Whilst our charged on an hourly basis, VAT and disbursements are recoverable from the defendant if your claim succeeds, the success fee is not and will be payable from your damages. The amount that we can recover from your damages is capped at 25% of the compensation for your pain, suffering and loss of amenity and damages for past financial losses net of any recoverable benefits.
If we work under a Conditional Fee Agreement you will not have to pay our charges if the claim fails or is abandoned. We will advise you on arranging a policy of insurance to cover your disbursements and your opponent’s legal costs and disbursements which may be payable if the claim were to fail.
4. Public Funding – previously called Legal Aid
Medical negligence claims ceased being eligible for public funding from 01 April 2013 unless the claim concerns a child with neurological injuries resulting in severe disability which arose during pregnancy, childbirth or in the eight week post-natal period.
Curtis Law Solicitors Limited does not hold a Public Funding franchise.
5. Trade Union Membership
If you are a member of a trade union or similar organisation, it may be able to offer you assistance with your claim and/or legal costs.
How will you investigate my case?
At the outset we will consider any documents that you can provide to us. It is important that you retain all relevant documents because if it is necessary to issue proceedings in court, we will have to tell the defendant about all documents that are in your possession or control. Please provide us with copies of all relevant documents as soon as possible.
We will secure a complete set of the relevant medical records to establish what happened in the medical accident, the injuries that you have sustained and the treatment that you have received. We will consider your complete medical history. Once all of the medical records are available, they will be sent to a pagination service for sorting and you will be provided with a copy of the chronology/summary and invited to confirm that it is accurate.
At an appropriate time we will take a detailed witness statement from you to capture your factual evidence and to give you the opportunity to express how the negligence has impacted you.
We will identify, approach and instruct suitable medical experts to report on breach of duty of care and causation of avoidable harm. We will instruct experts specialising in the areas of practice that your complaint is about and we apply stringent factors when determining the suitability of experts before formal instructions are sent to them.
If these initial reports are supportive of your claim we will proceed to address the value of your claim. This will involve arranging for you to be examined by a suitable expert to prepare a report on condition and prognosis. The number and type of reports will depend on the extent of injuries that you have sustained as a result of the negligence.
A Letter of Claim will be sent to the defendant which will include a summary of the facts on which your claim is based, the allegations of negligence, a description of your injuries and present condition/prognosis and details of your financial losses with an outline of the heads of damage to be claimed.
The defendant has two weeks to acknowledge receipt of the Letter of Claim and four months to provide a formal response. The Letter of Response will confirm whether the claim is admitted or denied.
Depending on the content of the Letter of Response it may be appropriate to instruct a barrister to review your claim and to provide an opinion on the prospects of success of your claim, the likely value and next steps. This may involve arranging a conference with the barrister and experts.
How long will it take for the case to finish?
It is very difficult to give precise information about how long your case will take because each case depends on its circumstances.
In general terms claims that are admitted by the defendant resolve much sooner than those where the defendant denies liability. If the case involves a serious life changing injury or the prognosis is unclear the timescale will be longer. If it is necessary to issue proceedings the timescales will be subject to the directions given by the court.
We will do what we can to ensure that your claim is progressed to conclusion as quickly as possible. However some factors are outside of our control. For example we cannot control how quickly the healthcare providers will disclose your medical records, some experts’ clinical commitments may mean that we have to wait some time for their reports, and defendants will often require extensions of time for service of the Letter of Response.
What informal processes are open to me?
You may wish to speak with the healthcare professional that treated you in order to seek an explanation of what happened during your treatment and, if possible, an apology.
You can follow the local complaints procedure in force in the relevant healthcare provider.
The Patient Advisory and Liaison Service (PALS) is available as a point of contact for patients, their families and their carers to address concerns.
Formal complaints should usually be brought within 6 months of the date of the event giving rise to concerns, but healthcare providers will likely reply to complaints up to 12 months from the date of the event, and in exceptional cases may reply to complaints raised much later. You may be invited to a meeting to discuss your complaint, but in all cases you should expect to receive a formal written
If you remain dissatisfied you may complain to The Health Service Ombudsman.
Adopting complaints can be a useful means of gathering information from the healthcare provider. However, they need not respond to a complaint if they are aware that you intend to take legal action. Therefore our ability to engage with the complaints process on your behalf is limited.
Finally, you may wish to complain about an individual doctor or healthcare professional because you think they are a danger to other patients. Such complaints can be directed to the relevant professional organisation.
Minors and Lack of Capacity
Children and people who lack capacity to manage their own affairs (for example, due to a disability) are unable to bring claims in their own name. If proceedings are necessary, a Litigation Friend must be appointed to bring the claim on their behalf. If this is necessary, we will ask the Litigation Friend to sign a certificate confirming their suitability and willingness to act at the outset.
Any settlements involving a child or a person who lacks capacity must be approved by the court to ensure that all relevant issues in the claim have been addressed and the compensation is appropriate. Damages must be dealt with as directed by the court to ensure that it is invested for the protected person’s benefit.
Personal Injury Trusts
If the claim succeeds and you recover compensation we will advise you upon the impact of the award on your eligibility for means tested benefits.
One method of avoiding any adverse impact on benefit entitlement following an award of compensation is to setup a Personal Injury Trust. If damages are held in trust the capital value and the right to receive money from it is disregarded for the purposes of calculating your entitlement to means tested benefit. Setting up a Trust would require you to transfer personal injury compensation to two or more trustees with instructions that they hold the money for your benefit. The trustees must then look after the money for your benefit and act in your best interest. You have the power to appoint the trustees and to bring the trust to an end by asking for the money back.
If a capital payment is made to you from a personal injury trust then so long as the capital payment is for a specific purpose it should not be considered when assessing entitlement to means tested benefit.
Income generated from a personal injury trust is no longer assessed in determining eligibility for means tested benefits.
The trustees are entitled to charge for the cost of setting up and maintaining the trust.
Recoupment of Benefits
The Department for Work and Pensions (DWP) will seek to recover certain benefits from parts of your compensation. From time to time we will send you a Certificate of Recoverable Benefits so that you can check the details provided.
Alternative Dispute Resolution
Alternative Dispute Resolution, such as mediation, can help the parties to narrow the issues between them and conclude matters in a timely and cost-effective manner. Courts are increasing encouraging parties to consider Alternative Dispute Resolution as an alternative to taking cases to trial. An effective mediation requires both parties to have sufficient information to form a view on the issues and whether settlement is possible. It can therefore only be considered once the investigation is well-progressed.
The Human Rights Act 1998
The Human Rights Act 1998 may give remedies beyond the ordinary limits of the law of negligence and potentially enlarge the scope of damage for which you may recover compensation.
The limitation period for claims under the Human Rights Act 1998 is just 12 months.
Inquests
An inquest can provide the opportunity to investigate the detailed circumstances of a death where a failure of care has caused or contributed to a death. A coroner will consider the identity of the deceased, the date of death, the location of death and how the deceased died. A coroner will arrange an inquest where the deceased:
- Died a violent or unnatural death
- Died a sudden death of which the cause is unknown
- Died in prison or in such a place or in such circumstances as to require an inquest
The coroner will specify which witnesses will be called and what documents will be produced. Members of the deceased’s family are likely to be asked to give evidence, along with the treating clinicians and representatives of the healthcare provider. In some cases the coroner may instruct an independent expert to prepare a report to assist them in determining the cause of death.
After being informed of the death, the coroner may order a post mortem. The family should be informed of the post mortem and are entitled to be represented at it by a doctor. The post mortem report is a key piece of evidence. You are entitled to request a copy of it from the Coroner’s Office.
An inquest can therefore provide invaluable information on issues relevant to the medical negligence claim.
If you wish to discuss a potential clinical negligence claim with our specialist solicitors you can email us, use our online enquiry form, or call us for free on 0800 008 7450.