FAQs

What is medical negligence?

Medical negligence (also known as clinical negligence) is when a doctor or other healthcare professional makes a mistake or fails in their duty of care to you or a loved one, leading to physical and/or psychological injury or even death. Medical negligence can happen due to mistakes, failures and incorrect treatment. 

What must be proved? 

To be able to bring a claim for negligence, you need to prove 3 things: 

  1. The clinician owed a duty of care to you, your unborn baby or your child, to not cause injury. All clinicians have a ‘duty of care’ towards their patients. This means there are certain standards they must meet. 
  2. The clinician failed in that duty of care by making a mistake that no other responsible clinician in that specialty would have made or that they failed to perform that care with appropriate skill and expertise – a breach of duty
    • You must prove that a mistake was made due to ‘substandard treatment’.
    • Whether the treatment was substandard is a medical question, and we must ask medical experts trained in the legal process if other responsible clinicians would have made the same decisions or given the same care.
  3. The breach of duty has caused harm – this is known as causation
    • You also must prove that it was the breach of duty (the avoidable mistake or substandard care) that caused the injury, loss, or damage that you are claiming for. In other words, would your injuries have been avoided if the mistake had not occurred?
    • It is for medical experts to advise on whether you would have avoided the injury if the mistake or substandard care had not taken place.

What sort of medical negligence compensation can I expect?

Compensation (often referred to as “damages”) is designed to put you back into the position you would have been in, had the negligence not occurred. Obviously in some circumstances involving permanent injury, this is not possible. Damages are therefore intended to compensate you for the injury itself, and to reimburse financial losses or cover the cost of future expenses.

Our specialist team will work to ensure that you receive the maximum level of compensation you deserve.

A clinical negligence claim is not quick – the investigations are complex, rely on experts and take time. We will always work  as quickly as we can to settle your claim but how long it takes will depend on how complex your claim is.

A clinical negligence claim is made up of two parts:

Investigations

The first part of a claim is investigating whether there is a claim, gathering the evidence and working out broadly how much a claim is worth. We will get copies of your medical records and take statements about what happened from you and people who know you. The investigations as to whether there is a claim to pursue rely on expert evidence. If an expert or experts agrees that there was a breach of duty that caused harm, we will proceed to the second part. If there is not expert opinion that you have a claim, we cannot proceed any further.

Court proceedings

The second part is the process after court proceedings start when a court sets a timetable for what must happen and by when – this is when the full case is provided to the other side. If court proceedings are started, you will be known as the ‘Claimant’ and whoever the claim is against is the ‘Defendant.’

One of the first questions we are asked is “how will I pay”? The most common ways that claims are paid for are:

Conditional Fee Agreement/ No Win No Fee

A Conditional Fee Agreement (CFA), is often known as “no-win, no-fee” agreement which is a contract between you and your solicitor.

A No Win No Fee agreement means that you have no upfront costs.

If your claim is successful, most of your costs are paid by the other side but some costs are deducted from your compensation which are:

  • The amount for an insurance premium
  • Basic legal costs that cannot be recovered from the other side
  • A success fee to reflect the risk that we have taken in the event your claim was unsuccessful

We will explain this to you in detail when we speak to you about your potential case.

If your claim is unsuccessful, you do not have to pay your solicitors fees or any of the fees that have been incurred in investigating your claim.

If your claim is funded by a No Win No Fee agreement, you will need an After the Event (ATE) insurance policy which we will take out on your behalf. This policy will protect you should your claim not be successful and covers the cost of any disbursements , such as expert report fees, and will cover any order to pay the opponent’s costs., You do not have to pay anything upfront. If your case is successful the insurance premium will be deducted from your compensation. If your claim is unsuccessful you do not have to pay anything for the policy.

We will use our expertise to consider your chances of success and advise you if we think you have a case and can take it on a No Win No Fee.

It is important to note that even if you do have access to other funding options, a CFA may still be the best option to investigate your claim. We will talk to you about this when we discuss your claim in more detail.

Before the Event insurance (BTE)

When you speak to your solicitor about the funding of your claim, they should ask if you have ‘Before the Event Insurance (BTE)’, commonly known as ‘Legal Expenses Insurance’. This is often sold as an add-on to other policies such as home insurance, and many people pay for the service without knowing they have it.

It is always worth checking whether you have legal cover on your household insurance policy before contacting a solicitor. Usually BTE policies will cover both your solicitors costs and disbursements up to a fixed sum.

Trade Union Cover

If you belong to a trade union, it is worth checking whether you are entitled to cover for a clinical negligence claim.

Legal Aid

Legal Aid is only available in a very limited number of cases that involve a child who suffered a brain injury during pregnancy, during delivery or in the first eight weeks of their life. Very rarely, legal aid is available where the Director of Legal Aid Casework considers a case to be exceptional.

If a case falls into the limited categories for Legal Aid, the Legal Aid Agency will also take into account your financial circumstances.

The general rule in law is that you have to start court proceedings within 3 years from the date that the negligence took place or within 3 years from the date you found out treatment was potentially negligent.

However, there are exceptions to this:

  • If a person lacks capacity to deal with their legal or financial affairs, which may include those who will have suffered a brain injury – in this case, there is no time limit.
  • If the claim is for a child (under age 18), court proceedings must start by their 21st birthday (i.e. three years after they turn 18).

If the injured person does not have capacity or they are under the age of 18, you can bring a claim on their behalf.

A ‘Litigation Friend’ will need to be appointed who provides instructions to the solicitor to investigate the claim and deal with the litigation:

  • In the case of a child, this is usually a parent or guardian
  • In the case of an adult without capacity, the Litigation Friend may be a family member or a close friend.

How do I pay for a medical negligence claim?

One of the first questions we are asked is “how will I pay”? The most common ways that claims are paid for are:

Conditional Fee Agreement/ No Win No Fee

A Conditional Fee Agreement (CFA), is often known as “no-win, no-fee” agreement which is a contract between you and your solicitor.

A No Win No Fee agreement means that you have no upfront costs.

If your claim is successful, most of your costs are paid by the other side but some costs are deducted from your compensation which are:

  • The amount for an insurance premium
  • Basic legal costs that cannot be recovered from the other side
  • A success fee to reflect the risk that we have taken in the event your claim was unsuccessful

We will explain this to you in detail when we speak to you about your potential case.

If your claim is unsuccesful, you do not have to pay your solictor’s fees or any of the fees that have been incurred in investigating your claim.

If your claim is funded by a No Win No Fee agreement, you will need an After the Event (ATE) insurance policy which we will take out on your behalf. This policy will protect you should your claim not be successful and covers the cost of any disbursements , such as expert report fees, and will cover any order to pay the opponent’s costs., You do not have to pay anything upfront. If your case is successful the insurance premium will be deducted from your compensation. If your claim is unsuccessful you do not have to pay anything for the policy .

We will use our expertise to consider your chances of success and advise you if we think you have a case and can take it on a No Win No Fee.

It is important to note that even if you do have access to other funding options, a CFA may still be the best option to investigate your claim. We will talk to you about this when we discuss your claim in more detail.

Before the Event insurance (BTE)

When you speak to your solicitor about the funding of your claim, they should ask if you have ‘Before the Event Insurance (BTE)’, commonly known as ‘Legal Expenses Insurance’. This is often sold as an add-on to other policies such as home insurance, and many people pay for the service without knowing they have it.

It is always worth checking whether you have legal cover on your household insurance policy before contacting a solicitor. Usually BTE policies will cover both your solicitors costs and disbursements up to a fixed sum.

Trade Union Cover

If you belong to a trade union, it is worth checking whether you are entitled to cover for a clinical negligence claim.

Legal Aid

Legal Aid is only available in a very limited number of cases that involve a child who suffered a brain injury during pregnancy, during delivery or in the first eight weeks of their life. Very rarely, legal aid is available where the Director of Legal Aid Casework considers a case to be exceptional.

If a case falls into the limited categories for Legal Aid, the Legal Aid Agency will also take into account your financial circumstances.

Limitation

How long do I have to make a claim?

The general rule in law is that you have 3 years from the date that the negligence took place to start court proceedings.

However, there are exceptions to this:

  • If a person lacks capacity to deal with their legal or financial affairs, which may include those who will have suffered a brain injury – in this case, there is no time limit.
  • If the claim is for a child (under age 18), court proceedings must start by their 21st birthday (i.e. three years after they turn 18).
  • If you didn’t know that negligence took place until after the 3 years has passed – for example, if there was a delay in diagnosis because you only found out much later that something that was missed that showed on a scan more than 3 years before.

If the injured person does not have capacity or they are under the age of 18, please see the section on ‘bringing a claim for someone else’ below.

It is important to contact us at the earliest opportunity so that events are fresh in your mind, and it is easier to obtain disclosure of relevant documentation.

Bringing a claim for someone else

When might someone not have capacity to bring a claim?

Sometimes as a result of the negligence or because of a pre-existing condition, someone may not be able to use, understand or remember information to make or communicate decisions – this is known as lack of capacity.

It is presumed that someone has capacity unless there is a strong reason to suggest they do not.

Some people who have a brain injury, a severe learning disability or mental health illness may lack capacity.

A child under the age of 18 is deemed not to have capacity to bring a claim.

Who brings a claim if someone doesn’t have capacity?

If an injured person does not have capacity, a ‘Litigation Friend’ will need to be appointed who provides instructions to the solicitor to investigate the claim and deal with the litigation:

  • In the case of a child who has a claim, this is usually a parent or guardian.
  • In the case of an adult without capacity, the Litigation Friend may be a family member or a close friend.

When court proceedings start, the court will appoint a Litigation Friend once they have considered a certificate of suitability that we will complete with you and submit to the court.

We will be able to advise on bringing a claim if someone does not have capacity and will advise you further.

What happens when the case is successful?

If the case successfully concludes and compensation is to be paid by the other side, the Court has to approve the settlement.

There is a hearing known as an ‘approval hearing’ where a judge is asked to consider advice from your solicitor and/ or barrister, all of the evidence from the case and details of the value of compensation. The judge has to confirm they are happy to approve the terms of the settlement to make sure that a child or someone lacking capacity is not under-settling their case.

After settlement and approval of a claim involving someone who lacks capacity, a deputy will be appointed who deals with managing the compensation and making sure it will last as long as it is needed for the injured person. Our Court of Protection team will help and advise on this process [LINK TO COURT OF PROTECTION PAGES]

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