Frequently Asked Questions
Here we answer some of the most frequently asked questions you might have about a clinical negligence or serious injury claim, including how they are funded, what a 2nd opinion really means, how compensation is calculated and how you can begin to make a complaint.
A claim can be made by anyone who has been harmed or has suffered an injury as a result of sub-standard medical care provided by a medical professional. Medical negligence can happen in a number of ways including; misdiagnosis, negligent medical advice, mistakes during surgery; delays in treatment or incorrect treatment.
A claim may also be brought where a loved one has died as a result of clinical negligence. Claims can be brought on behalf of the deceased’s estate and the dependants of the deceased. Dependants must be able to show that they relied on the deceased for financial support and/or the services (such as help with household chores and looking after children) when the deceased passed away and fall into one of the below categories:
- The husband or wife of the deceased, or former wife or husband;
- A civil partner of the deceased who had been living with the deceased for at least 2 years immediately prior to death, or former civil partner;
- A parent of the deceased, or treated as a parent;
- A child of the deceased, or treated as a child;
- A brother, sister, aunt, uncle, niece, nephew or cousin of the deceased
If you or a family member think you may have suffered harm or a loved one has died as a result of clinical negligence, do contact us for specialist legal advice. We can evaluate your claim and guide you through the process. Our years of experience can help make the process a bit easier and provide you and your family with support throughout the legal process.
There is no hard and fast rule about how long a clinical negligence claim will take and each case is different. It is important that a claim is fully investigated and this will usually include gathering and reviewing medical records and obtaining supportive expert medical opinion before setting out the claim to the Defendant. There must also be a firm medical prognosis before we can properly value the claim and advise on settlement of a claim.
As a guide, more straightforward claims may take 2 to 3 years, where clear evidence can be obtained identifying sub-standard treatment and linking the injury or harm to the negligence. This timeframe will heavily depend on the approach taken by the Defendant including whether they promptly respond to the claim and admit their negligence enabling resolution to be reached swiftly.
More complex claims involving serious and life-changing injuries and complex medical issues can take longer to investigate and may take a number of years to fully resolve. However, these claims are often for substantial compensation awards and we will try to get the best care, treatment and support both during the claim by getting interim payments of compensation from the Defendant, and for the rest of yours or your family member’s life once the case is settled.
To succeed in a clinical negligence claim, you will need to prove:
a) that the care provided by the medical professional fell below a reasonable standard of care (this is called ‘breach of duty’). Whether a medical practitioner’s care fell below a reasonable standard will depend on whether they acted in accordance with acceptable standards. The medical practitioner must have done something or failed to do something that a responsible body of medical professionals in that area would consider was not up to a reasonable standard.
b) that the injuries sustained were caused or materially contributed to by the negligent treatment (this is called ‘causation’). You need to be able to demonstrate that you would have avoided your injuries or these would have been materially reduced had you received proper medical treatment.
In order to be successful, you must prove both breach of duty and causation. It is not enough to succeed in only proving one of these two.
Each case will differ with some cases being tricky on breach of duty and others on causation.
However, it is fair to say that causation can often be the more complex element of claims and is often not straight forward. Even if it can be shown or it is admitted that the Defendant breached their duty of care, this alone will not be enough to be successful in a claim.
To be successful on causation one of the following tests must be established:
a) The “but for” test – this is the standard causation test and to be successful it must be shown that “but for” the negligent medical treatment the injuries or harm would not have occurred; or
b) Material contribution – this test applies where there are multiple causes of the injury and at least one of the causes is negligent. To be successful, it must be shown that the negligent cause made a material contribution to the injury.
Causation in medical negligence claims can be very complex and there may be circumstances where injury, loss or damage may have occurred regardless of the negligent treatment. It is important that the claim is investigated by a specialist legal team alongside medical experts to fully investigate the claim and whether causation can be established.
The short answer is no, a clinical negligence claim does not have to go to court. However, formal court proceedings may be necessary if the defendant has denied all wrongdoing. Once court proceedings have started, documents including witness statements and expert medical reports will be submitted to court. The majority of claims will settle before reaching trial but there is always a possibility that this may occur.
Your solicitor will do everything they can to help reach a settlement beforehand, as they will not want to put you under the increased stress and pressure of having your case go through the court proceedings. But in some cases it may be required to get you the compensation required.
If you are successful in your claim, compensation will be agreed or awarded for the harm or injury caused by medical negligence. Although financial compensation cannot reverse the effects of the injuries or harm sustained, it can help to transform the lives of those effected.
Generally, compensation is divided in to two categories, general damages and special damages:
(i) General damages
General damages are awarded for the injuries suffered and the pain and suffering caused. This award also reflects the impact that any injuries have had on the ability to enjoy day-to-day life to include impact upon hobbies and lifestyle. General damages are calculated by reference to past awards made in similar cases and the Judicial College Guidelines.
(ii) Special damages
Special damages are the financial losses incurred as a result of the injuries attributable to the negligence. These losses are sometimes referred to as ‘out of pocket’ losses. Typically, these losses include past and future claims for any lost earnings; loss of pension and work benefits; medical expenses; travel to medical appointments; assistance with care and any items or equipment you have bought relating your claim. To recover these losses documentary evidence to support any claim will be required and a medical expert would need to confirm that there was a medical need to incur the losses.
We have vast experience in helping our clients obtain the maximum possible compensation for their injuries, giving them a safe, secure and a bright future. Compensation can help provide for future private treatment, high quality care, suitable housing, specialist aids and equipment, regular therapy, as well as access to specialist education or occupational rehabilitation.
Compensation in Fatal Claims
Compensation in claims brought where a loved one has died as a result of clinical negligence is often formed of the following:
- Compensation for the pain and suffering that your loved one had to endure before their death;
- Care and assistance and aids and equipment that your loved one needed before their death;
- Counselling costs;
- Funeral expenses;
- Hospice costs;
- Travelling expenses;
- Loss of financial dependency, which incorporates loss of earnings and loss of pension of your loved one;
- Loss of services dependency, which includes the cost of childcare, household chores and domestic tasks that your loved one performed.
Also, certain family members are entitled to claim a Statutory Bereavement Award. These include a spouse, civil partner and parent (if the child is under 18 years old) and a partner of the deceased who co-habited with the deceased in the same household for two years or more immediately before their partner’s death.
A serious injury is any injury that has a significant impact on a person’s health and well-being, and may have long-term or permanent consequences.
Examples of serious injuries that may be the subject of a claim include:
- Brain damage or head injury
- Spinal cord injury leading to paralysis or loss of sensation
- Amputation or loss of limb function
- Severe burns or scarring
- Organ damage or failure
- Birth injuries leading to long-term disabilities
- Chronic pain or illness
- Psychological trauma or post-traumatic stress disorder (PTSD)
It is important to note that the severity of an injury is not solely determined by the physical harm caused. It can also take into account the emotional impact of the injury, such as the loss of enjoyment of life, the inability to work or care for oneself, and the need for ongoing medical treatment or rehabilitation.
The stages of a serious injury claim can vary depending on the individual circumstances of the case, but generally involve the following:
Initial consultation: The first step in making a serious injury claim is to consult with a lawyer who specializes in personal injury or clinical negligence cases. During this consultation, the lawyer will review the details of the case, assess the strength of the claim, and provide advice on the legal options available.
Investigation: Once a lawyer has agreed to take on the case, they will conduct a thorough investigation into the circumstances surrounding the injury. This may involve obtaining medical records, witness statements, and other evidence that can help establish the cause and extent of the injury.
Negotiation: If liability is accepted by the party at fault or their insurer, the lawyer will enter into negotiations to reach a settlement that fairly compensates the injured person for their losses. This may involve negotiating with the insurer or the other party’s legal representative.
Issuing court proceedings: If a settlement cannot be reached, or if liability is disputed, the lawyer may advise the injured person to issue court proceedings. This involves initiating legal proceedings in court and formally setting out the details of the claim.
Trial: If the case proceeds to trial, the injured person’s lawyer will present evidence in court to support the claim and argue for a fair compensation award. The decision on the amount of compensation will be made by a judge or jury.
Settlement or appeal: If a settlement is not reached during negotiations or at trial, it may be possible to appeal the decision to a higher court.
It is important to note that the length of time it takes to resolve a serious injury claim can vary widely depending on the complexity of the case and the cooperation of the parties involved.
We can provide a second opinion free of charge. We have acted for many clients who have been told they don’t have a case, but by looking at the claim in a different way and with our expertise, we have gone on to be successful.
Funding & Compensation
There may be several options open to you to include legal aid, No Win No Fee and legal expense insurance. We can advise you on the correct funding method for you. We have designed a No Win No Fee package to protect you from paying any costs should your claim not be successful.
Yes we do offer Legal Aid when this is available for clients. Legal Aid is restricted to claims relating to neurological injuries sustained in pregnancy, birth or the early neonatal period. Although we can pursue a claim for you using a Legal Aid certificate, there may be better funding options open to you to ensure your claim is dealt with swiftly and with the best experts. We can discuss this in more detail with you to advise you on the best way forward.
We know how important it is to be reassured that you will not be financially liable for any unsuccessful investigation. We have set up a funding package that ensures you will not have to pay any fees should your claim for damages fail.
Making a Complaint
You can make a complaint about treatment that you have received. You can also make a complaint for your child; for someone who has died, if you are the next of kin; or if they do not have the mental or physical capacity to do so and you are the next of kin.
We recommend that you make your complaint in writing and provide a brief background to the medical treatment received. You should explain why you are concerned about the treatment and request that your concerns are dealt with in line with the NHS complaints procedure.
Who should you write to?
It depends on where you received the medical treatment:
- Hospitals – The Chief Executive of the NHS Trust responsible for the hospital;
- GPs and Health Centre – The Practice Manager;
- A private health provider will have their own complaints process and you can request details of this.
- You should receive an acknowledgement to your complaint within 3 working days;
- There will be an investigation into your concerns;
- After conducting the investigation, you will receive a response letter addressing your concerns;
- If you wish, you can request a meeting, or this may be offered to you, to discuss the findings of the investigation;
- If a meeting takes place, ensure that you take someone with you and that a note of the meeting is clearly recorded by the healthcare provider. You can request that a copy of the meeting notes are sent to you afterwards.
You have 12 months from the date of the incident to make a complaint. This can be extended but that is up to the hospital Trust/clinician involved.
Unfortunately, there are no time limits for how long it can take to deal with your complaint. However, it would usually take at least 2 months.
Our team is happy to talk you through your options following receipt of the response, including advice on whether you have a clinical negligence claim.
You can take your complaint to the Parliamentary and Health Service Ombudsman. This must be done within 12 months of the incident. The investigation is usually lengthy and considers whether the complaint has been dealt with satisfactorily by the Trust.