How To Make A Medical Negligence Compensation Claim
At the outset it is expected that you will have numerous questions regarding making a medical negligence compensation claim, some of which we have attempted to answer below. However, each case is unique and every person is individual, so we would welcome you to telephone us for a free confidential consultation on 0800 731 1874 or 0161 785 3500 or email firstname.lastname@example.org.
What do medical negligence claims cover?
Medical negligence, also called clinical negligence or medical malpractice, applies to doctors, surgeons and nurses, but it also applies equally to other forms of medical treatment delivered by dentists, pharmacists, ophthalmologists, psychiatrists, midwives and physiotherapists – if you or a loved one have not been provided with a ‘reasonable standard of care’ by any one of these medical practitioners through carelessness or incompetence then you may be entitled to claim medical negligence compensation for any injuries suffered.
Many people who are victims of medical negligence need extra care or medical treatment, or suffer a loss of earnings from time missed at work. These costs mount up, and it is important that they are recovered. Do not miss out on compensation that can help your recovery because you are uninformed, or nervous about the system.
What are some examples of medical negligence?
Medical negligence claims relate to a wide variety of medical injuries including: anaesthetic awareness, obstetrics, gynaecology, orthopaedics, cerebral palsy due to birth trauma, negligent plastic surgery, ophthalmic surgery, spinal surgery, missed diagnosis, late diagnosis, inappropriate treatment, GP care.
Click on Medical Negligence Types for more information.
What do I need to prove in a medical negligence claim?
There are three basic requirements for the claimant in a medical negligence compensation claim.
Firstly, you will need to prove that the Healthcare provider acted in a way that no responsible or reasonable practitioner would have done and, that you have suffered a physical or psychological injury as a direct result of the negligence. In medical negligence claims it is necessary to prove that the standard of care fell below what would be expected, and that it was this negligence that caused the injuries. This is usually done by assessing the natural prognosis of the illness or condition, and the course it would have taken had the correct treatment been given. This is then compared to your situation to determine the extent of your suffering.
Secondly, you need to have someone to claim from. This will not always be the nurse or doctor who treated you, but often the NHS Trust they were working for or another organization responsible for them. We will be able to advise you of the most appropriate body. Healthcare providers have liability insurance, and in many instances the end result of a medical negligence claim is a settlement with the insurance company.
Thirdly, you must provide evidence that the injury actually occurred usually in the form of medical documentation of your injuries. Obviously, in the cases of clinical injuries this should be relatively straight-forward to obtain as medical notes of treatment are kept. As part of our investigations PH will request these from the relevant treatment provider. This is hardly ever an issue with medical negligence claims where official reports are submitted at the time of the incident. But it is far easier to investigate claims when evidence is still fresh, so try to seek an early consultation with a solicitor.
How is the compensation amount calculated?
The amount of compensation awarded is calculated based on the degree of injury and the treatment required. It is not a punishment for the person at fault but compensation for the costs you have incurred. So, serious injuries that have had a greater impact and require extensive treatment and recovery time tend to receive the higher compensation amounts.
What time limits apply for a medical negligence compensation claim?
You must bring a medical negligence claim within 3 years (called “the Limitation Period”). The Limitation Period starts either from:
- When you had your treatment or,
- When you first realised that you had suffered an injury (called your “date of knowledge”).
- In the case of children the 3 year limit does not start until their 18th birthday but they do not have to wait until then. Before they are 18 a parent or other person close to them can make a claim on their behalf.
If the case involves a person who cannot manage their own affairs because of a mental disability the 3 year limit does not apply until (and unless) they get over their disability.
In extreme cases the Court can allow the claim to go ahead even after the 3 year limit but it is best not to rely on this happening.
You should try to instruct us to deal with your case long before the end of the 3 year limitation period because:
- We will need time to investigate before we can start the case in Court and,
- The earlier the case is investigated the more likely it is that the documents which we need to prove the case will still be available and that people will be able to remember what happened.
Do I need legal advice from a medical negligence lawyer?
Medical negligence claims are often complex and difficult to handle. This is mainly due to clinical aspects regarding the individual circumstances, which will depend on the evidence of medical experts and need to be backed up with learned texts and papers. Every case should always be handled by an experienced solicitor who has passed a rigorous assessment of his or her experience and skills. People should check for the relevant accreditation, such as approval by the Legal Services Commission or membership of the Action Against Medical Accidents Referral Panel.
What options does PH offer to fund a claim?
1. Legal Aid – Public Funding (better known as Legal Aid) from the Legal Services Commission may be available to persons unable to afford to pursue claims. Only a select few solicitors, like PH, are authorised to apply for Legal Aid to fund medical negligence cases – there are not many in Greater Manchester.
2. No Win No Fee – Alternatively, your solicitor may offer a Conditional Fee Agreement (CFA) otherwise know as No Win No Fee.
If yours is a suitable case, we will take it on with the understanding that if you lose we will not be paid a fee. It is, however, important to know that if you lose you may still have to pay:
- Your opponent’s legal costs and;
- Both yours and your opponent’s “disbursements” (other expenses or charges such as fees for expert witnesses).
We can advise you how to take out insurance to cover these payments. If your claim succeeds we can charge a success fee. The amount of the success fee depends on a number of factors including the risk of your claim failing.
If you win your case the Court would normally order the opponent to pay most of our fees and disbursements, including the insurance premium and the success fee, so long as their charges are reasonable.
3. Legal Expense Insurance -There are two basic types of Legal Expenses Insurance. They are called “before the event” and “after the event” insurance and they work in different ways.
After the event insurance: An after the event policy is for when you are already in dispute and you have to cover the cost of our disbursements and the opponent’s costs and disbursements if the case fails.
Before the event insurance: A before the event policy is normally sold together with other insurance (such as household contents). It cannot generally be bought once a problem exists. If you have this kind of insurance to cover your costs, you would not need to enter into a No Win No Fee Agreement. Before the event insurance pays your costs only if your insurance company thinks you have a good chance of winning your case.
It is important therefore, to check any policies of insurance, including household contents, building and road traffic to see if this cover is provided. PH will happily help you go through your insurance documents so that we can advise you upon the existence, or otherwise, of cover.