By Medical Negligence Paralegal, Emily Taylor
What is medical negligence, how can you make a medical negligence claim and how will your compensation be calculated? Our specialist Medical Negligence team answer these and other frequently asked questions.
1. What is Medical Negligence?
Medical negligence relates to the error(s) of a health care professional acting in their professional capacity whilst in the course of their employment/self-employment. These professionals might be employed by the NHS, privately employed or self-employed.
2. What Evidence Do I Need to Make a Medical Negligence Claim?
In order to succeed in making a medical negligence claim, you must be able to prove all of the following:
- There was a breach of duty of care – we have to establish that the standard of care provided fell below the level to be expected of a skilled and competent practitioner in the relevant field of medicine. If there is a responsible body of medical opinion who would have acted in the same manner, then this would be a strong defence and your claim may be unsuccessful.
- You suffered injury, loss or damage
- Causation - in addition to the above we have to establish that any breach of duty was the probable cause of the injury, loss and/or damage you suffered.
In order to prove the above, we usually obtain your medical records, prepare your witness statement on your behalf and instruct independent medical experts to prepare Court reports specifically on the facts of your case.
3. How Long Should I Expect My Medical Megligence Claim to Take?
This depends entirely on the Defendant's willingness to accept fault and the severity of your injuries. If we obtain supportive evidence that is compelling, then it is more likely that the Defendant will admit full or partial liability.
The Defendant may see that there is a clear breach of care in your treatment. If the Defendant admits liability in part or in full, then this is likely to reduce the time taken to bring your case to a close as it would mean that less investigation needs to be done to prove your claim.
Claims for more severe injuries are likely to take longer than claims for less severe injuries. This is because the nature of the claim is likely to be more complex and comprehensive, specialist medical assessments may be required.
Therefore the length of time taken can vary dramatically, but the average medical negligence case takes 2.5 years to conclude.
4. Why Would a Defendant Admit Liability?
Medical professionals are bound by what's called the 'duty of candour' which means that when things go wrong, they must be open about this and apologise. In addition, admitting liability can actually save the Defendant both time and money in the long run.
If the Defendant admits liability, then we don't need to prove the elements of the claim which are admitted. This means that we do not have to incur legal costs for pursuing those investigations. If the evidence on your case is strong, then there is no reason why the Defendant shouldn't admit liability and avoid additional costs – particularly in NHS medical negligence cases. Co-op Legal Services will always seek to disclose this type of evidence as early as possible, so that negotiations with the Defendant can start sooner.
5. What Compensation am I Entitled to?
There are two branches of compensation:
- General damages are made up of moneys based upon 'Pain, Suffering and Loss of Amenity."
- Special damages are made up of any past and likely future financial losses and expenses arising from the negligence.
The compensation that you are awarded is based on a number of factors. Typical factors that affect the level of compensation are:
- The severity of the injury
- Whether the injury is permanent
- Whether further medical treatment is required
- The impact of the injury – whether you have lost your independence and whether you now require care and assistance
- Whether you have suffered a loss of earnings/income
- Whether you are able to continue or return to work
- Whether you have suffered any other financial losses.
Most Medical Negligence claims can be dealt with on a No Win No Fee basis.
6. Do I Have to Make a Complaint?
Making a complaint to the medical practitioner or organisation concerned as early as possible can help you and your medical negligence claim. This can give your Medical Negligence Solicitor important information on your case that can be used to secure early admissions of liability. It also means that there may be an internal investigation carried out by the defendant into your care – so you get the answers you wanted sooner than expected.
7. Do I Have to Go to Court?
The vast majority of medical negligence cases either settle before Court or are discontinued. Your Medical Negligence Solicitor would always prefer to settle the case before a Court hearing so that you don't have to give evidence on a witness stand.
But don't worry, you will still get your say even if your case doesn't go to a Court hearing because a witness statement will be taken from you which will put your recollection of events to the Defendant.
8. How Long Do I Have to Bring a Claim?
There are strict time limits for medical negligence claims in the UK. All claims involving a personal injury, including medical negligence claims, are subject to a three year time limit. This time limit starts from the date of negligence or from the date you knew your injury was linked to the poor care.
Three years is not a long time, so if you have been subject to medical negligence, you should contact a Medical Negligence Solicitor as soon as possible.
9. How Do I Fund My Claim?
There are a number of ways to fund a medical negligence claim. One of the most popular ways of funding a claim is through a Conditional Fee Agreement (CFA) also known as a 'no win, no fee' agreement.
At Co-op Legal Services, most medical negligence claims can be dealt with on a no win no fee basis.
Alternatively, you may already have Legal Expenses Insurance through your home insurance (it comes as standard with Co-op home insurance policies) or as a membership benefit from a trade union, for example. This type of insurance is called BTE (before the event) insurance. Check details of any current policies or memberships to see whether Legal Expenses Insurance is included. Your legal fees can be claimed from this insurance if so.
10. How Do I Make a Medical Negligence Claim?
You can submit a medical negligence enquiry either online, or by picking up the telephone. We have a dedicated team of medical negligence specialists at Co-op Legal Services that will be happy to discuss your claim. For a free, confidential consultation, call 0330 606 9673.