Guide To A Medical Negligence Claim
As we are often asked to explain the process and criteria required to bring a successful medical negligence claim, we thought it may be helpful to set out a brief guide.
Firstly, there is a three-year time limit on these cases which begins to run either from the date of incident, date you became aware that negligence had occurred or date of death in a fatal case. Before that three-year period expires you need to have either successfully concluded any claim, issued court proceedings or have agreed a limitation extension. Failure to do so will render the matter time barred and you will lose all entitlement to bring a claim.
In a case of this nature, it is necessary to establish both breach of duty (that an error has been made) and causation (that the error has caused you to suffer problems you would not have had if the breach had not occurred). To establish this, it usually requires a detailed consideration of the medical records.
If it is felt that the claim has some merit in succeeding, you are likely to be signed up to a no win no fee agreement. If the claim is successful a maximum deduction of 25% will be deducted from compensation received at the end of the case. If the claim is not successful, you will not pay anything.
You would likely also need after the event insurance funding, the cost of the premium usually dependent on the level of compensation received. In a clinical negligence case the premium is divided into two parts, the smaller part recoverable from compensation received on conclusion of the case, and the larger part recoverable from the other party. Again, if the claim is not successful you do not pay for the insurance. The insurers also screen the medical records and will only grant cover if there is sufficient prospect of the claim being successful.
If cover is granted, medical reports from appropriate experts would be obtained to support the claim. If the reports do not support the case, the claim would come to an end at that point. In that event the insurance would cover the cost of the reports obtained but you would not pay the insurance premium. If the reports are supportive, a letter of claim will then be sent to the Defendants setting out the claim, to which they have a period of 4 months to consider and revert with their decision on liability (although often they request more time for their response).
Thereafter, it depends on the response received on liability, which will either culminate in an appropriate settlement or the need to issue court proceedings. Even if proceedings are issued most cases (although not all) usually settle without the need to attend court.
In addition to making a claim for pain and suffering you may also be able to claim for any care and services received (even if provided by friends and family, loss of earnings/pension, mileage etc.
In a fatal case any claim for pain and suffering ends at the date of death and any compensation which may be received would form part of the deceased’s estate. If there was a Will, any compensation received would be divided in accordance with the provisions of the Will. In addition, it may be possible to claim bereavement damages and funeral costs.
Unfortunately, as with any case, if it should be established that the merits are such that there is little prospect of succeeding, we would be unable to run the matter on a no win no fee agreement and would be very unlikely to obtain insurance funding. In that scenario we would advise you fully in writing as to the reasons for this.
If you have any queries our specialist Medical Negligence team would be more than happy to assist.
About the Author
Tracy Hunns-Clarke | Medical Negligence Department