In this article, we look at some frequently asked questions about clinical negligence claims.
When is it possible to bring a claim for clinical negligence?
Where substandard medical care has resulted in an injury, it is possible to bring a medical negligence claim against most healthcare providers, including NHS hospitals, private clinics, ambulance trusts, GPs and dentists.
What is ‘duty of care’?
To bring a successful medical negligence claim, the treatment you received must have fallen so far below the acceptable standard set by the medical profession that it breached their duty of care to you. The treatment you received must also have caused an avoidable injury.
What can you claim for?
If you’re successful, in addition to compensation, you could potentially get an apology. Although this is not a legal remedy it is sometimes part of a negotiated settlement.
You will be awarded compensation for your injuries, known as ‘pain, suffering and loss of amenity’. Compensation should also cover your past and future financial losses which have arisen because of the negligence. ‘Losses’ can refer to lots of different things such as:
- Loss of past and future earnings through employment and/or your pension
- Costs associated with care and assistance due to diminished ability to look after yourself
- Medical expenses
- Special equipment required due to your injury
- Accommodation or adaptations to accommodation required due to injury
How can I fund my clinical negligence claim?
When you first instruct a medical negligence solicitor, they will discuss the negligence you believe occurred and the impact on your/your loved one’s health and life. They will then give you an honest evaluation of whether your claim merits further investigation and will discuss the various options for funding your claim. Depending on your individual circumstances, your options include:
Conditional Fee Agreement (No win, no fee)
No win, no fee is also known as a ‘conditional fee agreement’ (CFA) whereby your solicitor’s fees are only payable if your claim is successful. In addition, insurance will usually be taken out on your behalf to cover the legal fees of your opponent, e.g. the hospital (and legal expenses incurred), should your claim be unsuccessful. If your claim is unsuccessful, you won’t have to pay anything to your solicitor or your opponent, provided they have arranged an insurance policy on your behalf. The insurance premium is usually self-insuring so is not payable if you lose.
If you’re successful in your claim, your solicitor is able to claim most of the legal fees back from your opponent. Any shortfall, the insurance premium and a ‘success fee’ will be payable and will be deducted from your compensation. The success fee will be a maximum of 25% of the damages you receive for your pain, suffering, loss of amenity and any past financial losses which can be exactly calculated.
Trade union funding
If you’re a member of a trade union or you’re entitled to their benefits, it’s possible that the union will cover some or all of your legal costs.
Legal expenses insurance
This insurance is often taken out as an additional benefit on an insurance policy, for example home or vehicle insurance.
Legal expenses insurance often covers medical negligence claims. Usually it will provide indemnity cover to a certain limit for solicitor’s fees and expenses, regardless of whether you win or lose your claim.
In recent years, the scope of Legal Aid has reduced considerably and is now only available in cases involving children that meet strict criteria, for example, children who have suffered serious brain injury during their birth mother’s pregnancy, their birth, or during their first eight weeks of life.
If the injury has resulted in severe disability to the child, Legal Aid may be available to investigate a medical negligence claim.
What are the key stages of bringing a medical negligence claim?
Building your case
This will involve various steps, such as obtaining your medical records, gathering witness evidence and consulting with independent medical experts to comment on the standard of care provided and the link between any negligence and injuries. At this stage, your solicitor’s goal will be to clearly establish the facts of the case and how this has negatively impacted your/your loved one’s health and the full consequences for your/your loved one’s life.
The Letter of Claim and Letter of Response
Once you have a strong case and supportive evidence, a Letter of Claim will be sent to the defendant setting out the details of the claim and the likely compensation that will be claimed.
The defendant is required to respond (the Letter of Response) within four months, although there are occasions when their investigations take longer than this. In their response, the defendant will usually either admit full/partial liability for the negligence and its consequences, or deny responsibility for any wrongdoing. If they admit liability, they will normally offer some level of settlement.
Considering the defendant’s response
Where a settlement offered is fair, you will be advised of this by your solicitor. However, if no settlement is offered, or the settlement offered is too low, you will be advised of your other options, including negotiating or taking court action.
If you decide you want to take further action, court proceedings will be started and your claim will be issued by submitting Particulars of Claim setting out the details of your case to the court. The proceedings are then ‘served’ on the defendant.
The defendant will then have 28 days to respond. The court will then set the timetable for the litigation, including a date for a judge to hear your case. This is typically around 18 months from when the defendant responds to the claim.
In the period before your hearing date, your solicitor and the defendant’s legal team will try to agree an out-of-court settlement. This could involve direct negotiations, as well as alternate dispute resolution methods, such as mediation. In most cases, this approach is very successful.
Will I have to go to Court?
In the unlikely event that a satisfactory settlement is not reached before the case reaches court, you will need to attend Court for the trial.
A specialist clinical negligence barrister will be instructed by your solicitor who will advise on strategy for the hearing and will present your case on the day.
Medical negligence hearings are heard in front of a judge without a jury. They give both sides an opportunity to present their arguments and supporting evidence. The judge will then make a final decision on whether they claim is successful. If so, an order for compensation will be made.
Written by Barcan+Kirby
Brain Injury Group member firm Barcan+Kirby’s specialist medical negligence solicitors are passionate about getting claimants the result they deserve, as well as highlighting poor treatment to avoid the same thing happening to anyone else. Their clinical negligence solicitors advise claimants across the UK from six offices in Bristol and South Gloucestershire, guiding them through every step of the claims process.
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