Medical Negligence Claims

All members of the medical profession - including doctors, nurses and dentists - have a legal duty to ensure their patients are treated with appropriate skill and care. To bring a successful claim, you must prove that the medical professionals involved in your case behaved in a way no other reasonably competent medical professionals would have. We also need to prove that you suffered harm as a direct result.

Not every case where there is a suboptimal outcome gives rise to a claim - sometimes there are recognised risks and complications. Even where a medical mistake has occurred, it will not necessarily count as medical negligence. Proving that a clinical mistake was negligent can be complicated and is key to a successful claim.

This is a common worry, but you can be assured that making a claim should never affect your access to medical treatment.

The claim will be against an NHS Trust (and handled by a national body, NHS Resolution) or private healthcare provider, rather than an individual doctor or other medical professional. In practice, your claim will usually be dealt with by lawyers acting for the defendant.

It would be against the law for a hospital, GP surgery or other healthcare provider to refuse to treat you or your family or to provide a substandard service on the basis that you have made a medical negligence claim.

The aim of claiming compensation is to make sure you have all the support you need to minimise the impact of your injuries on your life. To that end, there are two broad types of compensation you may be entitled to claim as a victim of medical negligence:

• 'General damages' - compensation for pain, suffering and loss of amenity including the impact on your life.
• 'Special damages' - compensation for other financial losses or expenses incurred due to your injuries e.g. loss of earnings for time off work, treatment costs, buying specialist aids or equipment, paying for care, the cost of home adaptations or special accommodation, travel expenses to and from medical appointments and so on.

Exactly what you will be entitled to will depend on your particular circumstances and assessing this will be a key part of the claims process.

Compensation for medical negligence can often be very substantial, so it can potentially mean you will no longer be eligible to certain means-tested benefits if you do not get the right legal measures in place to avoid this.

To make sure your compensation does not affect your right to means-tested benefits, we can assist you with setting up a personal injury trust. Placing your compensation into such a trust allows you to use the funds to meet your needs while making those funds exempt from means-testing.

Where a loved one has sadly died due to medical negligence, the personal representatives of their estate can pursue a claim on their behalf. You will normally have three years from the date of death to bring a claim and the compensation can include:

• A fixed statutory bereavement award (currently set at £15,120)
• Funeral expenses
• Loss of financial dependency e.g. replacing the deceased’s income
• Loss of care and services provided by the deceased
• Compensation for pain and suffering

There are strict time limits for medical negligence claims. Generally speaking, court proceedings must be started within 3 years from the date when a medical mistake occurred or when you first realised that a mistake might have been made.

This is not always easy to determine. It could be the date when an operation went wrong, or it could be much later when another doctor picks up on a mistake. It is always best to seek legal advice as soon as possible to ensure you don’t miss the opportunity to bring a claim.

In cases involving children, the 3-year time limit does not come into effect until they turn 18, meaning they will have until their 21st birthday to bring a claim. If the medical negligence left someone without the capacity to bring a claim on their own behalf, e.g. if they were left in a coma, there is no time limit for bringing a claim, unless they later regain capacity. If they regain capacity, the 3-year time limit will run from that time.

Provided your claim has reasonable prospects of success (better than 50%), there are two main funding options:

• Many people already have insurance that will cover legal costs. This is is often included with home insurance policies for example.
• A Conditional Fee Agreement (commonly known as a 'No Win, No Fee' agreement). This means you pay nothing up front and we will only charge you if your claim is successful. We guarantee that you will recover at least 75% of your compensation after all deductions.

We can also arrange specialist insurance to cover your medical experts’ fees and court fees, and the risk of having to pay your opponent’s legal costs. With this type of insurance, you will not pay a penny if your claim is unsuccessful.