Medical Negligence

Medical Negligence FAQS

Below, we have answered some frequently asked questions concerning medical negligence claims

• What is clinical negligence or medical malpractice?

  Medical negligence or malpractice refers to a situation in which a healthcare professional or healthcare institution fails to provide the standard of care that is expected in their field, leading to harm or injury to a patient. It involves a breach of the duty of care owed to a patient and can result from errors in diagnosis, treatment, surgery, medication, or other aspects of medical care.

  Medical negligence can encompass a wide range of actions or failures to act, including misdiagnosis, surgical mistakes, medication errors, failure to obtain informed consent, and other acts of negligence that result in harm to the patient.

• How do you make a medical negligence claim?

  The general steps involved in making a medical negligence claim include:

  1. Seek legal advice – start by consulting a solicitor who specialises in medical negligence cases. They will assess your case and determine whether you have a valid claim.
  2. Gather evidence – you and your solicitor will work together to gather evidence to support your claim. This may include your medical records, witness statements, expert medical opinions, and any other relevant documents.
  3. Letter of Claim – your solicitor will draft a formal Letter of Claim, which is sent to the healthcare provider or NHS trust responsible for your care. This letter outlines the details of your claim, the allegations of negligence, and the compensation you are seeking.
  4. Pre-Action Protocol – the healthcare provider will have four months to investigate your claim and provide a response. During this time, they may admit liability or deny it. If they deny liability, your solicitor may need to gather more evidence to support your case.
  5. Issue Court proceedings – if the healthcare provider does not admit liability, your solicitor may issue Court proceedings. This means your case will be heard in Court, and you will need to prepare for a trial.
  6. Settlement negotiations – in many cases, medical negligence claims are settled out of Court through negotiations. Your solicitor will negotiate on your behalf to reach a fair settlement with the defendant.
  7. Trial – if a settlement cannot be reached, your case will proceed to trial. A Judge will hear both sides of the case and make a judgment. If you win the case, the Court will determine the amount of compensation you are entitled to.
  8. Compensation – if you win your case, you will be awarded compensation for your injuries and losses. This can include damages for pain and suffering, loss of earnings, medical expenses, and other financial losses.
  9. Costs – in the UK, the losing party in a medical negligence case is typically responsible for paying the legal costs of both parties. You may have legal expenses insurance to cover these costs.

  It’s essential to note that the process can be time-consuming and emotionally challenging. Medical negligence claims can take several years to resolve, and it’s crucial to have a dedicated solicitor to guide you through the process.

• Who is a medical negligence claim against?

  If the negligent treatment in question was provided in a hospital setting, the claim is not against the individual doctor or nurse, rather it will be brought against the NHS Trust responsible for the particular hospital.

  If the treatment was provided by a GP, dentist or private doctor, the claim will be brought against that person individually. However, all healthcare professionals are expected to have relevant insurance in place to cover any potential medical negligence claims and the insurers will therefore act on the person’s behalf.

• How do I prove my medical negligence claim?

  A medical negligence claim will only succeed if all three of the following elements are proven:

  1. That the Defendant owed the Claimant a duty of care. In a claim involving medical negligence, this test is satisfied because a healthcare provider always owes their patient a duty of care when providing treatment.
  2. There was a breach of that duty of care by the Defendant, e.g. that the standard of care provided fell below that expected of a reasonably competent body of medical practitioners.
  3. That the breach of duty resulted in an avoidable injury to the Claimant.

  It is not enough to simply prove that the medical treatment fell below the standard of care to be provided. In addition, a Claimant must also prove that the negligent care resulted in an avoidable injury.

  Medical negligence claims are difficult, lengthy and complex. There are a number of steps to be taken in order to prove a claim. Whilst every claim is different, and we will consider how best to investigate each claim on a case-by-case basis, the initial steps in a medical negligence claim will inevitably include:

  1. Putting in place suitable funding with which to cover your legal costs.
  2. Once funding is in place, we will then obtain all of your relevant medical records.
  3. We will obtain detailed witness evidence from you.
  4. Once the records have been received, we will carefully review and consider them, determining all of the key issues and entries relevant to the claim and begin to prepare a detailed chronology of events.
  5. We then instruct independent medical experts. We will specifically consider liability (e.g. whether there has been negligence) and causation (e.g. what that negligence has caused) and we may need more than one expert to assist in this regard.
  6. If the expert(s) are supportive of your claim, we will send a detailed Pre-Action Letter of Claim to the Defendant setting out the case in detail. The Defendant will then have four months within which to investigate and respond.
  7. In the meantime, we will begin to consider the value of the claim in more detail and this will most likely involve obtaining a further expert report dealing with Condition and Prognosis.

  Once a response has been received from the other side, depending on what that response is, we will then need to consider the most appropriate further course of action and each case will vary in this regard.

• What will making a medical negligence claim achieve?

  There are a number of things that bringing a medical negligence claim will achieve, which are:

  1. Compensation

  The main aim of a civil claim in medical negligence is to compensate a Claimant for the injury suffered as a result of negligence. If you have suffered an injury as a result of medical negligence, you are entitled to be compensated for that injury.

  When making a claim, you will be suing the healthcare provider for an amount of money with the aim to compensate you financially accounting for your injury and the financial losses suffered as a result of that injury. For example, loss of earnings because your injury means that you cannot work, expenses of travel to and from appointments which would otherwise have been unnecessary, expenses of purchasing equipment to assist you in coping with your injury, such as a wheelchair or adaptations around the home, the cost of additional care required whilst you recovered, and so on.

  Whilst the compensation will never un-do what has gone wrong, it will assist in financially putting you back in the position that you would have been had the negligence never occurred and also in planning for any potential future issues caused as a result of the negligence.

  2. Learning lessons

  A healthcare provider cannot learn from its mistakes, if those mistakes are not highlighted to them. As a result of a legal claim, a healthcare provider will learn exactly what happened and what went wrong which, in turn, will allow them to consider whether changes need to be put in place.

  Following a legal claim in which compensation has been paid, a healthcare provider will need to do everything possible to ensure that lessons are learnt and the same does not happen again in future.

  3. Answering questions

  Often, clients have numerous questions over their treatment and what exactly happened to result in their injury. The claim process will assist to answer those questions and clarify exactly what happened and where things may have gone wrong.

• What can I claim for?

  There are two main categories of compensation that you can recover in a medical negligence claim, which are:

  1. General Damages

  ‘General Damages’ is compensation awarded for pain, suffering and loss of amenity. Simply, this means the inability to complete activities, either temporarily or permanently, after the injury sustained from the negligent medical care, which could be undertaken before, such as being unable to undertake certain hobbies or pastimes.

  2. Special Damages

  ‘Special Damages’ are designed to compensate you for the financial losses and expenses incurred as a result of your injury. The aim is to put you back in the financial position you would have been in, had the medical negligence not occurred.

  A person who has experienced an injury or ill-health has a duty to take reasonable steps to minimise their losses and/or expenses.

  More information on General Damages and Special Damages can be found here.

• How will I fund my medical negligence claim?

  There are various options which may be available to you to fund your medical negligence claim, including:

  1. “No Win, No Fee” Agreement

  A so called “No Win, No Fee” Agreement is formally known as a Conditional Fee Agreement.

  This is a funding arrangement between you and your solicitor which enables you to cover the legal costs of bringing a claim in medical negligence.

  The way that the agreement works is that if the case fails, you will not pay anything to us for our costs. We will write-off our costs to date at the point that the case fails. An After-the-Event insurance policy will have been put in place to cover other expenses, such as Court fees, expert fees, records fees, etc.

  If the case succeeds, you will then be required to pay our fees plus a success fee. If you have won your case, you will usually be entitled to recover your costs from the Defendant. However, the success fee is not recoverable from the other side and will be payable from any compensation awarded. The amount of success fee is set at a percentage of our base costs and the level of that percentage will be assessed on a case-by-case basis at the outset, depending on the risks and merits of the case.

  There is a cap on the success fee as to how much can be recovered. The cap is 25% of past losses and at the end of the case, we will set out in detail how much the success fee equates to.

  2. Legal Aid

  Legal Aid is only available in certain medical negligence claims, which are cases that involve children who have suffered an injury from birth as a result of medical negligence.

  3. Legal Expenses Insurance

  Legal expenses insurance refers to any pre-existing insurance policy that you have prior to the injury, such as house or life insurance, that would cover your legal expenses in the event of a medical negligence claim.

  Further information regarding Legal Expenses Insurance can be found here.

  4. Private Funding

  This means that you pay your solicitor incrementally for the work they have done for you. If your claim is successful then your solicitor will recoup their costs from the Defendant and you will keep all of the compensation.

  However, should you lose your claim you will most likely be liable for both your solicitor’s fees and those of the other party.

• Are there any time restraints on making a medical negligence claim?

  Generally, when it comes to medical negligence claims there is a three year time limit to make a claim. This will either be from the date that the negligence took place or when you first became aware of it.

  For claims relating to those under the age of 18 years old, the three year limitation period will start to run on their 18th birthday and expire when they become 21 years old.

  More information regarding time limits in medical negligence claims can be found here.

• How long will my medical negligence case take?

  The time it can take to conclude a medical negligence claim varies depending on the type of claim, the severity of the injuries sustained by the Claimant and whether the medical professionals admit liability.

  On average, a medical negligence claim will take a minimum of two to three years to conclude.

• What is the difference between NHS and private medical negligence claims?

  Medical negligence claims can be made in the UK for incidents that occur within both NHS and private healthcare settings. While the legal principles surrounding medical negligence claims are generally the same, there are some key differences between NHS and private medical negligence claims:

  1. Funding:
     • NHS claims – claims against the NHS are typically funded by the NHS Litigation Authority (now called NHS Resolution). This means that if you bring a claim against the NHS, you are essentially suing a publicly funded organisation. The costs of the claim and any compensation awarded come from NHS budgets.
     • Private claims – in the case of private healthcare providers, such as private hospitals or clinics, claims are usually made against their medical negligence insurance or directly against the healthcare provider. The funding and compensation structure may differ from NHS claims.
  2. Litigation process:
     • NHS Claims – NHS claims are subject to specific protocols and procedures, including Pre-Action Protocols that involve a four-month investigation period after the Letter of Claim is sent. If a settlement is not reached, the claim may proceed to Court.
     • Private claims – the litigation process for private medical negligence claims may follow a different path. While some elements of the process are similar, such as gathering evidence and issuing Court proceedings, the specific procedures can vary depending on the circumstances and the healthcare provider.
  3. Liability and compensation:
     • NHS Claims – claims against the NHS can be defended by the NHS trust, and liability for negligence may be admitted or denied. Compensation, if awarded, is typically paid from NHS budgets.
     • Private claims – claims against private healthcare providers may involve different insurance policies, and the liability and compensation structure may be governed by contractual agreements or private insurance companies. Compensation in private claims can come directly from the healthcare provider’s insurance.
  4. Legal costs:
     • NHS Claims – legal costs are typically handled differently in NHS claims, and there may be caps on legal fees and the amount that can be recovered for legal expenses. Some claimants may be eligible for legal aid in NHS claims, although this is limited.
     • Private claims – legal costs in private medical negligence claims may be negotiated directly between the claimant and their solicitor, and these costs can vary more widely.
  5. Timelines – the time it takes to resolve a medical negligence claim can vary widely in both NHS and private settings, depending on factors like the complexity of the case, the willingness of the healthcare provider to admit liability, and whether a settlement is reached or a trial is necessary.

  It’s essential to consult with a solicitor specialising in medical negligence claims to understand the specific processes and considerations for your particular case, whether it involves the NHS or private healthcare providers. The solicitor will guide you through the legal process and help you understand the key differences and implications of your claim.

• What is the role of medical experts in medical negligence?

  Independent medical experts are vital to any medical negligence claim. The medical expert will be required to carefully consider all of the evidence before confirming whether, on a balance of probabilities, the care provided fell below the standard to be expected of a reasonably competent body of medical opinion within that specialism and, if so, whether the negligence resulted in an avoidable injury.

  Regardless of whether the expert is instructed by a Claimant of a Defendant, their overriding duty is to the Court and each expert must provide a signed Statement of Truth within their report confirming that they have complied with their duty and provided a complete, accurate and independent report.

  We will need to rely on our expert’s evidence throughout the case and ask further questions of them at various stages. If the case continues to the Court process, the expert will need to contribute to the various documents which must be served at Court and confirm their agreement with the way in which the case is pleaded.

  If the case were ultimately to proceed to a final Court hearing, the expert would need to meet with the Defendant’s expert to determine whether any agreements in the evidence can be reached. If the case did proceed to Trial, the expert would most likely be called to give evidence.

• How do I select a medical expert to use in my negligence case?

  As a specialist medical negligence team with many years of experience, we have built a substantial database of known and trusted experts with whom we regularly work with.

  If our usual experts are not available or cannot assist due to a conflict, there are various expert search facilities available to locate suitable alternatives and we will approach several potential experts before determining who is best placed to assist in your case.

  We always undertake searches for experts who are completely independent of the case, e.g. have no contact with or experience of the NHS Trust or individual doctors, nurses, dentists, etc. allegedly at fault.

• Will I have to go to Court?

  Most medical negligence claims will not reach a final Court hearing. Cases usually reach a settlement out of Court or the evidence obtained shows that the claim is not viable and the matter is brought to a halt before a Court hearing.

  However, there can be no absolute guarantees, as it is possible that a suitable resolution cannot be reached and the input of the Court is required to determine the case.

• What will happen to the doctor, nurse, dentist, etc. if I make a claim?

  If the treatment in question was provided in a hospital setting, the claim is not against the individual doctor or nurse, rather it will be brought against the NHS Trust responsible for the particular hospital.

  Making a claim will mean that those involved in your care at the relevant time will be most likely be expected to provide witness evidence about what happened and assist the Trust with their own investigations. In addition, it may mean that the Trust determine the particular person or team requires some additional training.

  If the treatment was provided by a GP, dentist or private doctor, the claim will be brought against that person individually. However, all healthcare professionals are expected to have relevant insurance in place to cover any potential claims in medical negligence and the insurers will therefore act on the person’s behalf.

  Any disciplinary action will be separate to a medical negligence claim and will be dealt with by the Trust and/or the General Medical Council (GMC). Only the GMC has any powers to deal with potential restrictions on practice or striking off and this is something that must be pursued separate to a civil claim in medical negligence.

• Will I need a medical examination if I make a negligence claim?

  As part of the claim process, it is important to determine the impact of the injury caused by the medical negligence.

  It is likely that the injury or problems caused by the negligence will be on-going and so we will need to properly investigate your current condition but also the likely prognosis in the future, e.g. whether you are likely to have continuing or further issues as a result of the negligence.

  In order to determine this, it is likely that a medical expert would need to see and examine you.

• Can I make a medical negligence claim on behalf of a child or person without mental capacity?

  Claims on behalf of a child

  If you are the parent or guardian of a child, you can bring a claim on their behalf.

  Anyone under the age of 18 is deemed in law to not have capacity to bring a claim in their own right. They will therefore need someone to act on their behalf in order to bring a claim in medical negligence. This person will act as their “Litigation Friend”.

  If the claim is successful, any agreed settlement will also need to be formally approved by the Court at an Infant Approval Hearing. Provided the Court is content that the settlement represents a fair and reasonable settlement for the child, approval will be provided and the compensation monies for the child must then be paid into a Trust to be held for them until the age of 18.

  The time limits for bringing a claim on behalf of a child are also different. The general time limit of three years from the date of the incident or date of knowledge does not apply in the same way for a child and instead, the three years will begin to run on their 18^th birthday and expire when they reach 21 years of age.

  Claims on behalf of a person without mental capacity

  If the patient is an adult, but is lacking the mental capacity to bring a claim in their own right, e.g. a person who has suffered a brain injury which impacts their mental function, they will need someone to bring the claim on their behalf.

  This person will also act as their “Litigation Friend”. Any settlement reached on behalf of a person lacking capacity will need to be approved by the Court.

  The general time limit of three years from the date of the incident or date of knowledge does not apply whilst a person does not have capacity. If, during the course of the claim, the patient regains capacity, the three year limitation period will then start to run. However, if they do not regain capacity at all, then the limitation period does not start to run.

• Can I make a medical negligence claim for someone who has died?

  When someone passes away, a medical negligence claim can be brought on behalf of their Estate.

  Who is entitled to bring that claim will depend on whether the Deceased person left a Will.

  If a person has left a Will, they will have appointed Executors within the Will to act on behalf of their Estate in the event of their death. Those who are named as an Executor will therefore be entitled to bring a legal claim on behalf of the Estate. The Executors will need to obtain Grant of Probate in the Estate to give them formal legal standing to deal with the Estate.

  If there was no Will, then the rules of Intestacy will apply, meaning that the nearest relative (usually spouse, parents, siblings and/or children) will be entitled to apply for a formal legal document known as Grant of Letters of Administration which will give them legal standing to act on behalf of the Estate of the Deceased.

  At Nelsons, we have a specialist Wills, Trusts and Probate team who will assist us to obtain the appropriate documents to enable a person to act on behalf of someone who has passed away.

• What is causation?

  It is a commonly held misconception that in order to succeed with a medical negligence compensation claim, it is enough if the Defendant admits that there was a breach of duty of care, but there is much more to a medical negligence claim than this.

  A medical negligence claim will only succeed if all three of the following elements are proven:

  1. That the Defendant owed the Claimant a duty of care. In a claim involving medical negligence, this test is satisfied because a healthcare provider always owes their patient a duty of care when providing treatment.
  2. There was a breach of that duty of care by the Defendant, e.g. that the standard of care provided fell below that expected of a reasonably competent body of medical practitioners.
  3. That the breach of duty resulted in an avoidable injury to the Claimant.

  It is not enough to simply prove that the medical treatment fell below the standard of care to be provided. In addition, a Claimant must also prove that the negligent care resulted in an avoidable injury. This is known as ‘causation’ and it is very often the more difficult part of the claim to prove.

  Read more about causation here.

• If I make a medical negligence claim, will it affect my future care?

  No. There should be no impact on your current and/or future treatment because you are bringing a claim.

• Will I have to attend meetings at your offices?

  Much of a medical negligence claim can be handled via telephone, letter and email. However, a face-to-face meeting is sometimes preferable.

  We have offices in Derby, Leicester and Nottingham and meetings can take place at whichever office is most convenient for you.

  If you are unable to travel to our offices, home visits are possible.

• Will I have to pay for an initial meeting to discuss my potential medical negligence claim?

  No. As part of the process of determining whether a claim is viable and how we can assist, it is very helpful for us to talk through the details with you. This can be done over the telephone, but it may well be preferable for a face-to-face meeting.

  Any initial discussions about your potential claim will be of no charge to you. Once we have established whether we are able to take on your case, we will consider the best funding option for you and work to put that in place as soon as possible to cover the future legal fees.

• Is it possible to claim against NHS and private healthcare providers?

  Yes. If your treatment was provided under the NHS, the Healthcare Trust responsible for the Hospital will take responsibility for the medical negligence claim. They are NHS indemnified to cover such claims.

  If treatment was provided by a privately funded healthcare provider, the claim will be brought against the individual doctor. Every doctor practising privately must have their own indemnity insurance in place to cover such claims.

• Is there a complaints process before making a medical negligence claim?

  Yes. The NHS has a specific complaints process whereby you can raise your concerns with them and they are required to investigate and respond within a certain time frame.

  Even if you ultimately look into bringing a medical negligence claim, making a complaint in the first instance can be most helpful in determining whether there might be a viable legal claim.

  When discussing your potential claim with you, we will consider whether it would be worthwhile to make a formal NHS complaint in the first instance and can talk you through the process.

• Do you assist with inquests?

  Yes. We have a team of experienced Inquest specialists.

• Why do I need legal representation at an inquest?

  Where an inquest involves large institutions, such as the NHS, and in circumstances where the exact cause of death is unknown or unclear, these inquests will inevitably be lengthy, detailed and complex. In addition, it is usually the case that the NHS will have their own legal team representing them.

  In such circumstances, having your own specialist legal team representing you is invaluable.