- Breach of duty – that your treatment (or lack of it) was negligent. To prove this, it is not enough to say that you did not receive the best treatment. We need to show that the treatment or lack of treatment that you received was of a standard that no reasonably competent doctor or nurse would have provided. In other words, if there is a reasonable body of doctors of the same specialism who would have treated you in the same way, the claim will fail.
- Causation – that the negligence has caused injury or worsened the outcome in some way.
Both of the above tests must be satisfied before we can bring a claim on your behalf. We have a bank of excellent medical experts who we call upon to help us answer these questions. Have I left it too long to make a claim? Court proceedings in respect of your claim must be commenced within three years of the date of negligence (or the date you became aware of the negligence). In claims involving children, the claim must be commenced before their 21st birthday. There is a lot of work to be done in a medical negligence claim before Court proceedings can be issued, so it is always best to enquire whether you have a claim well in advance of the three year deadline. How much does it cost to make a claim? We run most of our claims on a “No Win No Fee” basis. This means that we never ask you for any money up front. If you lose your claim (i.e. you do not recover any compensation) you do not pay us anything. If you win your claim, we take a proportion of your damages (limited to 25%) to cover our fees. This would be explained to you in more detail during your initial enquiry with us. Who do I claim against? If you have received negligent treatment in an NHS Hospital, the Defendant in the claim would be the NHS Trust which is responsible for that particular hospital. If your GP has been negligent, or if you have received negligent treatment at the hands of a private doctor, he or she would be named personally as the Defendant. How long does the process take? This depends on the complexity of the claim, how many medical experts we need to instruct and the position taken by the Defendant. If you have a simple, modest value claim which only requires the assistance of one medical expert, your claim may conclude within 6 to 12 months if liability is admitted. If liability is denied and/or your claim is particularly complex, it could take one year to several years to conclude, to ensure we get you the best possible settlement. In certain circumstances, we may be able to get you an interim payment to assist with rehabilitation, pending a final settlement. Will I need to go to Court? Parties in a medical negligence claim must follow certain steps before a claim is put before the Court. We endeavour to settle as many claims as possible at this preliminary stage and as a result, most of our claims are settled without having to issue Court proceedings. It is very unlikely your claim will end up at Court as most claims settle out of Court. In the unlikely event you did have to go to Court, our specialist team would support you every step of the way. Are there any repercussions to my receiving continued treatment? Many people are concerned that their treatment will be adversely affected if they make a claim against the hospital or GP who is providing their ongoing treatment. If you feel uncomfortable about staying with the same GP Practice you are making a claim against, it is open to you to change to a different GP Practice. This is not mandatory though and you are entitled to carry on receiving treatment at that Practice as long as the doctor/patient relationship has not irretrievably broken down. Your hospital treatment should not be affected even if you are making a claim against that hospital. If however, you feel the relationship with your Consultant has broken down, you could see if your GP would be willing to refer you to someone else. Do you take on small claims? When deciding whether we can assist you with a claim, we must bear in mind its potential value. A new procedural rule was introduced in 2013 which deals with proportionality. This rule essentially discourages firms from taking on claims where the legal costs are likely to outweigh the damages recovered. Our team of specialists can discuss your potential claim with you and suggest other ways you might be able to raise your concerns if we are not able to assist with a claim. Are there any alternatives to pursuing a claim for medical negligence? Yes. If you simply want answers but don’t wish to bring a claim for compensation, you can make a written complaint to the hospital or GP concerned. If you are not satisfied with the response you receive, you can escalate the matter to the Parliamentary and Health Service Ombudsman. If you have concerns about an individual doctor or nurse, you can complain about that individual to their professional body. For doctors, this is the General Medical Council (GMC) and for nurses, this is the Nursing and Midwifery Council (NMC). The GMC and NMC have the power to impose sanctions on the individual in appropriate circumstances, including suspension and striking off the Register. How is compensation for medical negligence calculated? The purpose of a compensation award is to try to put the victim back in the financial circumstances they would have been in, but for the negligence. There are two types of damages:-
- General Damages – sums of money set by the Courts to compensate for non-financial losses, i.e. injury, pain, suffering, loss of amenity and any ongoing disability. The calculation of any general damages sum is, in the first instance, based upon a standard scale set out in judicial guidance (known as the “Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases”) which every Judge is required to use as their starting point for the assessment of damages. There is an amount of discretion on the part of a Judge, but generally sums awarded will not stray very far from these Guidelines. Useful additional sources of reference are awards made in previously decided cases by Judges (or out of Court settlement figures) concerning those with similar types of injuries.
- Special Damages – damages that are awarded to compensate you for all financial losses and expenses arising in consequence of the negligence. For example, loss of earnings, prescription charges, travel costs, adaptations, private medical fees and for the value of any necessary time that family and friends have spent in looking after you.
In cases where someone has sadly died as a result of medical negligence, compensation is calculated in a different way. Our team of specialists would advise you on this. How soon will I get any compensation which is awarded? Once a settlement has been reached, we usually hope to receive your compensation within 28 days. In the case of a settlement reached on behalf of a child, this must be approved by the Court and the money paid into Court, to be released when the child is 18. Do I get to keep 100% of my compensation? Unfortunately the law changed in 2013 such that we can no longer recover all of our costs from the Defendant. As such, we are entitled to take a proportion of your damages (limited to 25% of damages for past loss) at the end of the claim in respect of our fees. Any damages awarded in respect of future loss are ring fenced (protected) and you get to keep 100% of that part of your compensation award. Can I claim for emotional harm/upset? Not unless you are suffering from a recognised psychiatric injury such as depression or post traumatic stress disorder (PTSD). We cannot claim damages for stress, upset and anxiety alone. Can I claim on behalf of someone else? Yes. A parent or guardian can be appointed a Litigation Friend to claim on behalf of a child. A Litigation Friend can be appointed to act on behalf of someone who lacks mental capacity. The Executors or Administrators of the Estate of a Deceased person can claim on their behalf. Does it matter if I can’t get to your offices? No. We can discuss the initial details of your claim over the telephone and conduct much of the claim by telephone and / or email if that is preferred. We are able to make home and hospital visits if you are too unwell to travel to our offices.