Medical Negligence Claims: Everything You Need To Know! 🧑⚕️🏥
Nov 17, 2023 | Dino Enahoro
Suffering negligence at the hands of a trained medical professional or clinic can be a traumatic experience and it is essential to have the appropriate support and understanding if you are considering making a claim as a result of clinical failure. While from the outside medical negligence claims may seem like a complex process, accessing support from a trained medical negligence solicitor can help to ensure you have insight into the process, time limits and compensation available to you when you make a claim.
For those who are considering making a medical negligence claim, we cover all the essential information in our complete guide below. If you have any additional questions or you would like to begin the claim process, please call us on 0800 086 2929, email email@example.com or complete our Free Online Enquiry Form to speak to one of our knowledgeable specialists about your potential clinical negligence claim.
What can be classed as medical negligence?
Medical negligence, also known as clinical negligence, is when a clinic, institute or medical professional provides a poor standard of care to a patient. This substandard care can result in further health problems, avoidable harm or deterioration that may otherwise have been avoidable through prompt, high-quality healthcare.
Negligence refers to the fact that a healthcare professional, such as a doctor, nurse or surgeon, or an entire medical service, such as a clinic or mental health service, has breached their duty of care and failed to treat a patient with due diligence.
As medical negligence applies to the entirety of healthcare, these claims can cover various medical problems, failures and health concerns with a wide range of severities. For example, you may have a claim to make against a doctor who failed to treat an infection swiftly, resulting in several months off of work, or you may claim a lifelong disability caused by an incorrect medication dose.
The comprehensive nature of medical negligence and the significant variables means that solicitors and Courts consider most claims on a case-by-case basis. This practice helps to ensure that any compensation you receive aligns with the outcome of the medical negligence that you experienced.
On what grounds can you sue for medical negligence?
You can sue for medical negligence if you believe you have experienced a loss or damage due to a doctor or other healthcare professional not meeting their duty of care. For these claims, damage or loss can mean several different things, including physical injury, psychiatric harm, and financial loss resulting from negligence.
To make a claim, you and your solicitors will need to prove that the healthcare professional you would like to sue failed to keep you safe and did not act in your best interests to prevent any physical, psychological or financial damage you experienced.
To recognise if you can claim for medical negligence, you should first understand what duty of care is. Within healthcare, the duty of care is a legal duty that all trained medical professionals must abide by to provide a reasonable standard of care to their patients. This legal requirement means that where it is ‘reasonably foreseeable’ that either action or inaction may cause harm, the practitioner should take necessary measures to keep their patients safe.
As medical professionals are responsible for providing a good standard of care, failure to do so is considered negligence. For example, if a GP identifies symptoms in a patient that may suggest cancer but does not refer them to the relevant specialist, this would fail to meet their legal duty of care for that patient. Likewise, if a doctor prescribes the wrong treatment or medication, causing harm, this is another failure in providing a good standard of care to that patient.
How do you make a medical negligence claim?
Making a medical negligence claim requires a significant amount of preparation and understanding of the legal processes surrounding duty of care and clinical failure. Firstly, choosing a solicitor to work with is essential for preparing your case effectively.
Once you have chosen a solicitor, they will work with you to determine liability and help you decide whether you would like to continue with your claim. Cases for medical negligence require proof that a healthcare professional or facility has not met the necessary standards. As such, it is important to define whether negligence occurred or not.
Once liability has been determined, you will work with a solicitor to demonstrate causation. For instance, showing that a condition or injury resulted from negligent treatment instead of a natural or typical result of the medical problem you had prior to treatment.
At this point, your solicitor will prepare a Letter of Claim, which clearly outlines the circumstances of the claim and the allegations of negligence. The hospital or medical professional then has three months to complete their own investigations and provide a response.
In some cases, compensation is awarded following the Letter of Claim with no need to go to Court. However, if medical negligence is denied, the process continues on to the Court, where a final decision is made over fault and the value of compensation you receive.
When you agree to make a medical negligence claim with your solicitor, it is important that you are aware that you may need to attend Court as necessary to complete the case.
What do you have to prove for medical negligence?
As with any claim, medical negligence claims require in-depth evidence and information to be viable.
As clinical failure can be less clear-cut than some other cases, it is important that your solicitor collects in-depth information to support your claim.
Evidence to support medical negligence claims
The success of any medical negligence claim is contingent upon whether sufficient evidence can be obtained to prove that the client suffered medical negligence and this directly caused the injury or condition in question to worsen. Some of the types of evidence that can help to support a medical negligence claim include:
These include any results of tests or examinations, such as ultrasounds and x-rays, alongside details of the medical care and medications you received when under the case of a clinic or medical professional.
Third-party medical examination
If you have a long-term physical or mental health condition resulting from negligence, you may be asked to make an appointment with an unbiased medical professional for diagnosis or confirmation.
In the case of physical harm or injury, photographs of these health concerns can help to support your claim if taken at the time of or soon after the incident.
Providing a detailed, accurate statement for yourself or your loved one is a necessary form of evidence to support your claim.
Statements from witnesses, such as other medical professionals, friends and family or anyone else surrounding the healthcare facility, can act as a form of support to the statements you make in your own description of the incident or failure.
Ongoing care records
If you continue to receive care and support for injury or disability, such as physiotherapy or around-the-clock care, these records can be included in your case to prove the long-reaching effects of medical negligence.
How long do medical negligence claims take?
Medical negligence claims can be highly variable in the time they take. This variability is partly due to the different levels of severity and factors of complexity within each case.
For instance, you could claim medical negligence resulting in a slower surgical recovery, with your compensatory claim primarily covering loss of work. However, you could also make a clinical negligence claim for severe brain damage to your child following negligence during their birth, requiring years of testing and ongoing examination to determine the full extent of this injury.
As there is no single standard of clinical negligence claims, solicitors will work on a case-by-case basis and define how much time is necessary for evidence, research and the claims process individually.
On average, most negligence claims take at least half a year to a year to complete for simple cases, so it is important to bear this in mind before you start your claim. Part of this time involves calculating damages, which can be lengthy in complicated cases, such as where payment for lifelong care, resources or medical equipment may be required.
While more complex medical negligence claims can take years to complete, particularly in cases with infants and young children, you may be eligible for interim payments. These compensatory payments are provided before a settlement is decided upon, covering the costs of ongoing care and support for yourself or the loved one you are claiming for.
Is there a time limit for making medical negligence claims?
If you are considering making a medical negligence claim, you will typically have three years following the date of negligence to begin making your case.
If you did not realise treatment was negligent at the time but became aware later, this time limit will apply from the date you became aware. For example, if clinical negligence resulted in you being in a medically-controlled coma for several weeks, the ‘clock’ for your claim would start from when you wake up and are aware that your health problem resulted from negligence.
There are two important exceptions to the standard three-year time limit of medical negligence claims. These are:
Medical negligence claims for children
If you are under the age of 18 or you would like to claim on behalf of a family member who is, the three-year time limit does not apply. Before the age of 18, a compensation claim can be made at any point, regardless of how long ago the negligence occurred. This is common in cases with birth injuries, for example, where the full extent of brain damage cannot be tested until the child is older in order to make an accurate claim. Once a child reaches the age of 18, the three-year ‘clock’ starts, expiring when they reach 21 years of age.
Medical negligence claims for adults without mental capacity
Adults and children without mental capacity have no time limit applied to making a claim, as they cannot make their own decisions. As such, a loved one can claim at any time on their behalf after medical negligence occurs. The exception to this is if the individual gains or regains mental capacity in the future, as confirmed by a trained medical professional, after which the three-year typical time limit will apply.
What are examples of medical negligence claims?
Medical negligence claims are as complex as the health conditions resulting from a clinical failure. However, some types of medical negligence are more common than others. These include:
- Birth injuries, such as cerebral palsy
- Brain injuries, such as brain damage
- Failure to diagnose health conditions promptly, such as cancer
- Delays in treatment
- Mis-prescription and incorrect dosage
- Surgical errors
- Spinal injuries
- Pressure sores
- Ambulance failures and delays
- Failure to refer patients to proper care services
While this is not an exhaustive list of what is classed as medical negligence, this list provides an overview of some of the most common claims made in clinical negligence cases.
Discussing the exact nature of your potential case with an experienced medical negligence solicitor is the ideal way to decide whether or not you would like to continue your own claim.
How much compensation can I claim for medical negligence claims?
The amount of compensation you can claim from medical negligence depends on the outcome of that negligence.
While there is no one set rate for what you will receive, your solicitor can provide a general idea based on their individual calculations for your specific case.
Much like negligence cases themselves, compensation can be highly variable. For instance, someone that requires lifelong 24/7 care due to surgical failure may be awarded an amount in the millions, while someone unable to work for several months may be awarded an amount in line with that loss of earnings.
How do you fund a medical negligence claim?
Funding for medical negligence claims is worth considering before you consider starting a case. In some cases, you may prefer to pay your costs up-front to a legal professional, but there are more suitable options for many people looking to make a claim.
Alternative funding methods for medical negligence claims
There are various ways in which a medical negligence claim can be funded. Typically your appointed solicitor will commence the process by assessing the circumstances and merits of your case as well as the prospects of success. If they believe that your case is eligible with reasonable prospects of success, they will discuss the claims process with you, as well as the various methods of funding available to you. These funding methods include:
Legal Aid funding
Legal aid funding is Government-provided funding available for eligible medical negligence cases, primarily for birth injury claims.
No Win No Fee
No win no fee is a standard option provided by solicitors, such as our team, in many cases, where you are not charged for legal services if your claim is successful.
Legal Expenses Insurance (LEI)
Certain home and contents insurance policies may include legal expenses insurance, covering any legal fees incurred when making a claim.
Will I need to go to Court?
Many medical negligence cases do not require you to attend Court, with a settlement agreed upon with the facility or medical professional without reaching this stage. However, when you make a claim, you should be mindful of the possibility that your case may go to Court.
If a healthcare professional denies your claim of clinical negligence and refuses to make a settlement, going to Court allows for a decision to be made over the validity of your claim and the amount of compensation you will be awarded.
Can I apply for Legal Aid?
Legal aid is a suitable funding source for certain types of medical negligence claims. The Legal Aid Agency typically offers to fund birth injury claims, where a child receives a brain injury that can cause lifelong health concerns due to negligence by medical professionals during pregnancy, in birth, or shortly after birth. Your solicitor can advise you on whether legal aid is a suitable route to take, or you can research this option yourself online.
Can I claim against the NHS?
If you were treated by a clinic or healthcare professional in the NHS and suffered due to negligent care, you can make a claim. As with a compensatory claim against a private hospital or medical business, you are able to build a case for compensation against the NHS. The NHS Litigation Authority is a specialist department that handles all medical negligence cases, handling claims for compensation for patients across the UK.
Can I make a medical negligence claim on behalf of my child?
If your child is under the age of 18 and you believe there is a claim to make for medical negligence, you can do so as their parent or guardian. Once a child is over the age of 18, they can choose to make that claim themselves. The UK Government defines someone who claims on the behalf of someone else, such as a child or someone without mental capacity, as a ‘Litigation Friend’.
Can I bring a medical negligence claim after someone has died?
If a relative passes away due to medical negligence, you can claim compensation for a wrongful death. You may be eligible to seek compensation if you are the parent, child, sibling or spouse of that person. These claims are typically split into a claim on behalf of the estate, for any pain and suffering experienced, and a claim for the financial impact of their death.
Can I bring a claim on behalf of somebody else?
In most cases, medical negligence claims are made on behalf of someone else if they are under 18 or do not have the mental capacity to do so themselves. In other cases, the person making a claim will typically need to be the individual who received negligent treatment or failure from a medical professional. Speaking to an experienced medical negligence solicitor will give you a good understanding of the options available to you.
How Elite Law Solicitors can help
Regardless of your exact circumstances, pursuing a medical negligence claim against General Practitioners, NHS Hospitals, Ambulance Services, Dental Surgeries, Private Hospitals, or Clinics can be a daunting and complicated process.
Our team at Elite Law Solicitors have extensive experience in this complex field of law. If you or your family have been impacted by sub-standard medical care, our specialist clinical negligence solicitors can assist you with pursuing a claim for compensation. The team will be able to assist you in a sensitive and efficient manner to garner trust and put you at ease.
One of our medical negligence solicitors will lay out your options clearly, explaining what will happen if you go down a particular route and giving you the best chance of the outcome you want.
Dino Enahoro is an experienced solicitor and the Head of our Clinical Negligence Department; he has many years of experience in dealing with a range of medical negligence claims including, but not limited to, cerebral palsy, brain injury, childbirth, misdiagnosis of cancer and general medical negligence.
Dino regularly provides specialist legal advice and assistance on all aspects of medical negligence to clients nationwide. In addition to office meetings, Dino offers remote meetings to clients via telephone and video conferencing software such as Microsoft Teams so can assist you wherever you are based.
Make a Free Enquiry
Are you considering pursuing a claim for medical negligence? If so, our highly experienced and qualified clinical negligence solicitors will be able to help. Contact us today by calling 0800 086 2929, emailing firstname.lastname@example.org or completing our Free Online Enquiry Form to discuss your case.