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How to make a medical negligence claim

No-one goes to see a doctor or dentist and thinks that something could go wrong. The trust that we have in the NHS and private healthcare providers when we need care or treatment is usually well-placed. But what if a caregiver or medical professional does something – or doesn’t do something – that causes you injury or illness? Knowing how to make a medical negligence claim could be an important first step in helping you to get life back on track after such a traumatic event.

Of course, it’s understandable that a legal claim might be the last thing on your mind in such a situation. That’s why this guide aims to show you how simple the process can be – and how we can help your family. With this information, you can then make a decision that’s right for you.

Medical negligence claims explained

The wrong treatment, a delayed diagnosis or a mistake in an operation… the scope of medical negligence is a broad one. These are just some examples of what can go wrong when you’re in the hands of a medical professional. Fortunately, they are rare – but that’s no consolation if you or a loved one have suffered as a result.

If you’ve been injured or suffered an illness due to poor care or treatment, you may be able to claim compensation. This is something with which our specialist medical negligence solicitors are here to help. Part of their job is to make the claim process as easy and stress-free for you as possible so, if you think that you might have a case, here’s exactly how to claim medical negligence.

How to start a medical negligence claim

The starting point for your claim is to get in touch with our specialist solicitors. At Hugh James, we have significant experience in supporting people in your position, so we know exactly what it takes to succeed – and to get you the compensation that you need. Taking the first step is never the easiest thing but we want to put you at ease and reassure you that you’re being heard.

At this point, it’s your chance to tell us – in your own words – how you or your loved one have suffered. There’s no charge and no obligation, either. With the details that you provide us, we’ll use our experience to work out if you have a strong claim. If so, it’s then your choice whether or not you decide to go ahead – and remember: it is always your decision and yours alone.

A step-by-step guide to the claims process

Just as you are a unique individual, so too will the circumstances of your claim be unique. All of our solicitors respect and reflect that in the cases on which they work. The claims process itself, though, usually follows the same steps, so we can at least give you an outline idea of what to expect:

Once funding has been put in place the first stage will be to gather evidence. Medical records will be obtained from the GP and any hospitals attended. Possibly a witness statement will be taken detailing what has happened.

On the proviso that there continue to be prospects of success, consideration will be given to instructing an expert to comment on liability. Given complexity of clinical negligence cases it may be necessary to instruct a number of experts to determine whether there have been any failings in care causing injury.

On the basis that the evidence is supportive then a ‘letter of claim’ setting out the criticisms of care will be sent to the care provider. They will then have a period of time withing which to carry out their own investigations, after which they should provide a ‘letter of response’. Within this they should either admit or dispute liability. If liability is disputed then reasons must be given.

The steps taken thereafter are very much dependent on what the letter of response says. As long at the liability expert evidence obtained continues to support a claim then further expert evidence on the injuries caused by the alleged failings in care will be obtained, and consideration given to commencing court proceedings.

Once court proceedings have been started the court will set out a list of steps the parties have to take before the case gets to trial. These steps will usually take place over a 1½ year period, although it can be longer or shorter than this dependent on the case’s complexity.

It is very rare for clinical negligence cases to proceed to trial, as there will generally be multiple opportunities for the parties to consider settlement.

Will I need to go to court?

We know how scary the thought of going to court may be to you. Fortunately, only a small percentage of claims will go to a formal trial, however, our expert solicitors prepare each case in-depth to ensure we’re ready, in the event that court proceedings are required.

The medical negligence system is designed to try and find a solution without formal court proceedings being required. This helps to save time and money whilst preventing the stress of court for victims of medical negligence.

Should your case go to trial, we will go to great measures to prepare you for court, so you feel as comfortable as possible with proceedings. This means you’ll be fully prepared by our expert lawyers and they will be there for you every step of the way, offering support to you as and when you need it.

Can I claim for medical negligence

The question of “do I have a medical negligence claim?” can be a tough one to answer. It’s entirely natural to be unsure. For some people, it’s hard to believe that they suffered an injury or illness as a result of poor-quality healthcare. Others might struggle to work out if their pain and/or suffering is a new condition or related to a pre-existing one.

Here are a couple of important considerations that can help you to decide if you do have a claim for medical negligence. You and your solicitor will need to prove breach of duty and causation.

Breach of duty

The first of the two stage test that needs to be satisfied to prove a claim for clinical negligence is breach of duty. To succeed it has to be proven that no body of reasonably competent doctors, specialising in the field of medicine that was treating the injured person, would have acted in the same way.

As this is a question of how a medical professional should have acted, any criticism would have to be supported by an independent expert.

Causation

The second part of the two-stage test is referred to as causation. Essentially it has to be proven that a breach of duty identified has caused some additional harm or injury that would not have otherwise been suffered. Normally an independent expert will be needed to support the causation aspect of the legal test. This expert may be different to the expert needed for breach of duty.

Who can I make a claim against?

A claim can be brought against any party who has provided medical treatment. That will include the hospitals where treatment was provided, and also GPs.

It can include various other parties too, so for example if treatment was paid for privately then you can sue the treating doctor (who will have their own insurance) or the company providing that treatment.

It can also include claims against the employer of paramedics, or a nursing home.

Sometimes it is not terribly obvious who the responsible party for the treatment provided. It is therefore important that you instruct a specialist lawyer who can identify who the correct potential Defendants will be.

How successful are medical negligence claims?

The success of your claim will be based on whether you can prove liability and causation. Each case will be judged on its own merits, too, so it’s not as simple as saying that “X” amount of claims are successful. After all, the facts involved in your claim won’t be the same as another.

In its annual report for 2021-22, NHS Resolution reported that 48.5% of claims in England and Wales were settled without damages being paid. That might seem like a high proportion of claims that aren’t successful but it still shows that more than half did end in compensation being paid to the patient. And that figure also doesn’t include cases involving NHS Scotland or private facilities.

No matter what happens, you can be sure that your Hugh James solicitor will do all that they can to reach a settlement in your favour which reflects the pain and suffering that you experienced.

Is there a time limit on medical negligence claims?

Our healthcare system normally does a fantastic job but sometimes things do go wrong. Whether it’s GP negligence or hospital negligence  if something has gone wrong you may be able to make a medical negligence claim,  but you’ve only got a limited time to do so.

The general time limit for these cases is three years on from the date of the negligent treatment  – or three years from when you became aware of the negligence. However, the rules can be complicated, which means in certain cases you could claim long after three years have passed. It’s always best to contact a solicitor in these cases and they can advise you on whether or not the time limit has passed.

There are other limits to bear in mind too. For example, if a child receives negligent treatment, then a claim can be made on their behalf at any time until their 18th birthday. Once they reach 18 years old, the three-year timeline will begin. Those who don’t have the mental capacity to make a claim will not have the three-year rule applied to them at all. Should their mental capacity be regained, then they will have three years from this date to make a claim.

We can offer guidance based on our in-depth knowledge of the claims process. We’ll be with you every step of the way if you decide to claim and will strive to reach a settlement as quickly as possible. For more information on how to make a medical negligence claim,  get in touch using our online form or speak to us directly .

Can I claim for medical negligence more than three years after the treatment?

Not normally, no. The time limitation for medical negligence claims is three years, so any claims brought after this period may be statute barred. That’s why it’s important to seek legal advice as soon as you can.

However, there are instances where you may be able to pursue your claim after three years. For example, if the claim is on behalf of a child under 18, if you lack capacity or if you only found out that you may have received negligent treatment after the 3 year period has elapsed.

How do I complain about medical negligence?

If you are dissatisfied about the treatment you or a loved one has received then a complaint can be made to the body that provided that care, whether that be via hospital, GP or otherwise. Every medical provider will have their own complaints process. Details of this should be included on their website.

In Wales there is a concerns process referred to as NHS Redress, in which complaints can be dealt with. Within this an offer of Redress can be made of up to £25,000 if it is found that there have been failings in treatment causing harm. Legal advice can be funded via the hospital in these instances. This scheme is not available in England.

You can seek assistance with making a complaint through the Patient Advice and Liaison Service (PALS), which is an informal confidential help and advice service for patients.

How to write a letter of complaint for medical negligence

If you want to make a complaint about the care received then there are a number of items you should include. It is helpful to be as concise and accurate as possible in the complaint. It is important to direct the complaint to the correct organisation. For example different hospitals can be run by different NHS Trusts.

The complaint should include your details, and if making it on behalf of someone else, then who that is. You should include your NHS number if you have it, as well as any other identifying information (such as date of birth) so that the care provider can verify and locate the treatment in question on their system.

The complaint should set out a summary of the treatment with which there is concern in a chronological fashion, including the dates. Details of any members of staff seen can be helpful to identify if remembered. It then assists if the complaint can clearly and concisely set out the concerns had in treatment so that it can be understood precisely what the issue is.

How do I pay for a medical negligence claim?

Your initial consultation will be free and we’ll assess the information you provide to us and tell you if your case has reasonable chances of success. There will be no obligation to go through with your claim from here, but if you do, then we may be able to offer you a Conditional Fee Agreement or “no win, no fee agreement”. This means that you won’t have to pay any legal fees if your case is unsuccessful.

Should you win your case then a success fee and the non-recoverable element of your After The Event insurance will be deducted from your compensation amount and all other reasonably incurred legal fees will be recovered from the defendant.

All information regarding the funding of your case will be discussed in full during your initial consultation before you decide to instruct us. We hope this will make you feel more confident in proceeding with your claim to get the compensation you deserve for your injury.

Can I get legal aid for medical negligence?

Legal Aid has now been severely restricted in clinical negligence claims. It is only potentially available in severe neurological injuries sustained by a child during pregnancy, birth or shortly afterwards.

At Hugh James we have a Legal Aid contract, and are able to determine eligibility for Legal Aid and can make the relevant applications in the correct cases.

What should I do next?

We hope that our guide has explained how to make a claim for medical negligence and answered some of your big questions on the topic. The key takeaway for us is that getting compensation doesn’t need to be hard, complicated or something that you face alone. At Hugh James, our expert solicitors are here to help – and they’ll be with you at every step of the way.

So, if you think that you have a claim, please get in touch. There’s no obligation or pressure for you to do anything even after you talk to us but our knowledge and experience can put your mind at rest about what’s involved. More importantly, it can also help you to get the compensation that you need to rebuild after suffering an injury or illness when you least expected it.

Key contact

Ruth Powell

Partner

Ruth is a Partner and Head of our Clinical Negligence Department. She has exclusively practised in clinical negligence since qualifying in 1995 and has a wealth of experience in complex and high value clinical negligence claims.

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