Medical professionals should be the people you can trust most but unfortunately, just like any other line of work, there are people working in the medical industry who are sometimes less than professional. Of course this is not acceptable and if you feel that you have been ill-treated by a medical professional then you have every right to make a claim for compensation. If you or a family member want to make a claim for medical negligence, then one of the first questions on your mind will almost certainly be – how much compensation am I likely to get? This is quite a tricky question to answer conclusively since no two cases will be exactly the same. That said, it is possible to provide an estimate based on the type of claim you want to make.
Use our special compensation calculator today and get a better understanding on how much your medical negligence compensation claim could be worth.
How much compensation for medical negligence you receive will depend on the severity of the damage caused and how much it affects you, both now and in the future. The compensation provided is for any pain and suffering as well as for any money lost through your inability to work and earn money. You can use our medical negligence compensation calculator to find out how much you might be due.
When it comes to compensation claims for medical negligence, there are a few different categories of claims that people make. These include –
Factors that affect the amount of compensation you will receive How much compensation for clinical negligence you receive will depend on a few key factors. These include:-
If you want to find out more about medical negligence cases and the process of claiming for medical negligence, read our complete guide below. Index
Medical negligence or medical malpractice are terms that are used when someone working within the medical profession acts unprofessionally, misdiagnoses a patient or makes a surgical error. The medical negligence definition might vary slightly depending on the country where the claim is being made. But generally it refers to any negligent action by those who provide medical care.
Clinical negligence is simply another term used for medical negligence or medical malpractice. The terms are often used interchangeable but they all mean the same thing.
Each case of medical negligence is going to be different in some way. Often the claim being made for medical negligence is due to poor treatment at the hands of medical professionals. More specifically, what is classed as medical negligence includes a situation in which a health practitioner, in the course of prescribing treatment, falls below a reasonable standard of care and causes unnecessary pain or suffering to the patient, either short or long term.
If you feel that you or a family member has been the victim of medical negligence then you have every right to make a claim. Legally, if you are able to prove that you have suffered an injury that was caused by a medical professional then you may be entitled to compensation. How much compensation you receive will depend on the severity of your case.
If you feel that an apology and explanation is not enough then you can make a claim for compensation. It is worth noting that just because the outcome of your treatment was negative, this does not automatically mean you are entitled to compensation. For you to receive compensation for medical negligence, you must be able prove the following:
Each case of medical negligence will be different, but below are some of the most common forms of medical negligence that people make claims for:
The type of funding you use will depend on your particular situation and the strength of the claim you are making. If your case is particularly strong, then our solicitors can provide you with a No Win No Fee* agreement, which means there are no financial risks to our clients from the start.
Investigating your claim is a key part of the process and can sometimes take months to complete. The first step in this process is to obtain a statement from you detailing the events that led to your potential negligent care or treatment. A copy of all your medical records will need to be obtained and reviewed. This should not prove to be an obstacle as you are entitled to these upon request. The next step involves getting support for your case from an independent medical expert to review your records and to advise whether the care you received fell below an acceptable standard. The reason this is so important is because it lends credibility to your case. Once it has been established that the care you received was sub-standard, it must then be proven that this resulted in either the cause or worsening of your condition. It is only after this evidence has been collected that the strength of your case can be assessed. It may then be necessary to consult with an experienced barrister who will be able to give their opinion on whether it is worth proceeding with your case. If your case is strong enough to pursue, then the next step is to inform the Defendant by sending them a “Letter of Claim”. This essentially involves informing the Defendant of your grievances and intended actions if a satisfactory outcome is not able to be reached. Once your letter of claim has been sent out, the Defendant then has 4 months to respond with their “Letter of Response”.
If you are unable to reach a settlement with the Defendant then the next step is to commence formal court proceedings. This is done by issuing a court document known as the 'Claim Form' to the court. You must also serve this to the Defendant along with the following:
Before sending these documents to the Defendant, you must read through them and confirm that they are indeed accurate. You will then sign a 'Statement of Truth’ and this will be sent to the Defendant.
The Defendant is obligated to provide their defence within 28 days after the Particulars of Claim have been served. However, it is usual for the Defendant to request an extension of 1-3 months to file their Defence and in most cases this will be granted by the court. Once the Defence has been submitted, all parties must then fill out a questionnaire (Allocation Questionnaires). The questionnaire will ask each party to detail the evidence they intend to submit in court and the timetable they think is suitable for the case. After the questionnaires from all of the parties have been submitted, there will then be a court meeting – known as a 'Case Management Conference'. The purpose is to set down the timetable of events for the court proceedings after having taken all the information laid out in the Allocation Questionnaires into account. Typically, the trial is scheduled within 12-18 months of the Claim form being issued. From the time of the Claim form being issued to the beginning of the trial, the following usually takes place:
This timetable enables you and the Defendant to try and negotiate an agreement before progressing to court, however, this can happen at anytime throughout the proceedings. If no agreement has been reached, you will then have a final meeting with your barrister to discuss the details of the case and the best way to proceed in court.
Most cases do not end up going to trial; however it is always important to prepare for this scenario well in advance just in case it does. If the case does proceed to trial then a judge will listen to all of the evidence presented to them, including the opinions of the medical experts. They will then make a decision as to whether you are due compensation. The length of time that a trial takes will depend on how complex the case is. With medical negligence claims, usually a “Split Trial” will be held. This means that there will be one trial to determine liability and a second trial to determine how much compensation will be awarded.
On some occasions it may be possible to apply to the court for a payment of compensation from the Defendant. The funds could be used for items such as a wheelchair, a car or a house. However, this will generally only be possible if the Defendant admits liability.
Parties to a dispute are encouraged to resolve matters without the need to attend a court hearing. As soon as both the parties have assessed all of the evidence in detail, it will then be possible to negotiate a settlement. In some cases Defendants may feel that they are not in a position to proceed to trail. In the event that the case is brought by a child, or someone who is lacking in the capacity to manage their own affairs, the court then has power to approve any agreements that have been negotiated.
A big part of any medical negligence case is determining how much compensation the victim will receive. Of course this is going to depend on quite a few factors. These include how much pain and suffering the victim has gone through and is likely to go through in the future as well as the impact the illness has on their ability to make money, both now and in the future. An investigation into the amount of compensation to be awarded will usually not take place until after the preliminary medical issues have been settled. That being said, it is certainly possible to estimate broadly how much you are likely to receive at the start of the case. The following are key factors that will be taken into account when assessing your claim valuation:
This is money that will be paid to you to compensate for any pain, suffering and loss of amenity you have endured that is attributable to your injury. When deciding on what amount this should be, the court will look at similar cases and consider guidelines for the type of injury or illness you have sustained.
Loss of earnings forms a large part of the payout you will receive for medical negligence. You do not necessarily have to have been employed at the time of your injury or illness, as the loss of your future earnings are taken into account. Some of the aspects that determine how much compensation for loss of earnings you will receive include:
It is possible that you will be able to claim for any loss of earnings on your partner's behalf if they had to take time off work to care for you.
If you have been receiving care, then you can often claim compensation for those who have been providing it, whether you have paid for it or not. Some of the assistance compensation that you can claim for includes:
Another key part of the compensation in a medical negligence case is the cost of medication and any medical treatment that is required both now and in the future. Medical treatment such as physiotherapy, speech therapy or occupational therapy can be claimed for. In addition to this, you can also claim for the costs of prescriptions fees, including, pre payment prescription certificates, painkillers and bandages, as long as the medication relates to your injury or illness.
The extent of your illness or injury might be severe enough to require your accommodation to be adapted. In this case you can claim for any related expenses. You can also claim for any added costs these adaptations might add to your energy bills.
If any special equipment has had to be purchased as a result of your injury, for example a wheelchair, bathing aids or stair lift – then this can also be claimed for.
You can also claim for any additional financial losses incurred. This could include things such as any special dietary requirements, extra washing expenses, babysitters, telephone calls or any additional costs as a result of cancelling a holiday. These payments can be made either as a single payment or an ongoing annual payment.
If there is a chance that your injury might worsen in the future the court can assess the value of your injury as it stands at the time of the trial or settlement. But they can also grant an order that would enable you to come back to court within a set time frame, this only occurs if medical experts anticipate that your condition will deteriorate. If there is a change in your injury, it must be a “serious deterioration” and must happen in a pre determined time frame.
If your case is successful and you have received certain state benefits, these may be deducted out of the compensation you receive and refunded to the Government. As well as this, if you are awarded compensation, your future entitlement to benefits may also be affected. In order to prevent this from happening it might be possible to set up a personal injury trust fund.
If you receive any means tested benefits then you should strongly consider setting up a personal injury trust fund if you do not want to lose access to them. Means tested state benefits include:
If you are receiving any of these and have your compensation paid directly into your main bank account, then it is likely that your benefits will be reduced or cut off altogether, depending on how large the payout is. Despite the name, personal injury trust funds can be set up for any form of compensation pay out, including medical negligence claims. If you receive benefits and do not want your compensation pay out to affect them, a personal injury trust is the ideal solution.
In some cases, if you are suffering from a serious mental disability and you are not able to manage your own affairs, it may be necessary to make an application to the Court of Protection so that a Deputy can be appointed.
Claims for medical negligence in England and Wales must usually be brought within three years of the date of the accident or the day that you became aware that your injury was related to the original accident. This date is known as the “date of knowledge” and can be much later than the actual date of the accident.
We are a regulated, professional claims management company that has vast experience in dealing with medical negligence claims. You can have peace of mind knowing that our solicitors:
With these credentials you can have peace of mind knowing that your claim will be in safe hands.
If you suspect that you have been a victim of medical negligence or malpractice then this practical guide will take you through the process of how to claim for medical negligence.
There are several reasons why you may be seeking to make a medical negligence claim. You could be seeking an official apology from a healthcare provider, or looking for improvements to be made for certain medical services. You could be seeking financial compensation to give you the means to pay for the additional support you now need due to the injury you have suffered.
The first step to take in order to try and get an apology is to lodge a formal complaint to either the hospital or care service provider you hold responsible. This is fairly straightforward as all healthcare providers have a complaints procedure in place which can be accessed on their website. By obtaining that apology you may also raise awareness as to how the current system just isn't working and bring about changes that reduces the risk of what has happened to you happening to others.
The aim of making a medical negligence claim with a view to receiving financial compensation should be to help pay for an additional care and support you now need. Financial redress aims to put you back into the position you were prior to sustaining whatever medical mishap had befallen you. The first stage of this process is to consult a solicitor which is best done sooner rather than later due to the medical negligence claims time limit. Your solicitor will help you by;
Securing the services of an experienced solicitor who is a specialist in the field of medical negligence claims is vital. These kind of cases can be extremely complex so you need the right person in your corner from the off. Your solicitor will be able to explain everything to you in a language you understand and will also be a source of support through every step of the process.
There are different funding options that will be available to you, which are:
Out of these options the most popular by far is a conditional fee agreement (CFA), usually known as a No Win No Fee* arrangement. Not only does this relieve you of the stress of having to find the funds for your solicitor's fees, it also gives you assurance that your solicitor will do their very best for you, because if you don’t win your case, they don't get paid. While it used to be unusual to find a solicitor to take on a medical negligence case on a No Win No Fee* basis, this position has changed drastically in recent years which is a great help to those who wouldn't be otherwise able to make a claim. Remember your solicitor must provide you with a client care letter which will set out the firm’s fee structure and procedures after your initial consulation. Your solicitor also has a duty to keep you updated on costs throughout your claim.
Once the funding options have been decided upon the next step is to gain access to any relevant medical notes or records pertaining to your case from any hospital and/or health practitioners involved. These reports will be used by a team of independent, medical experts to prepare your report. Your solicitor can obtain access to these records once you have give permission to them.
There are three distinct issues which are addressed during a medical negligence action as follows; Breach of Duty -This determines whether the care given to the claimant fell below a reasonable standard. This will be judged according to both the medical knowledge and the standards that were prevalent at the time the negligence is alleged to have occurred. Causation - The link between the breach of the duty of care and the injury that has been sustained. Did the medical professional’s conduct make a significant contribution to the current state of affairs? It has to be proved that there is no other cause for the disability. Quantum - The level of monetary compensation that you should be awarded based on the severity of the illness or injury that has been sustained.
Medical negligence claims can be a complex process as such, the time it takes to finalise is very much dependent on how complicated your case is as well as other determining factors. These can range from:
You normally have 3 years from the alleged date the incident occurred or from the date when you first became aware of the repercussions of this incident. When it is a child who was the victim of medical negligence, the 3 year limit does not begin until they reach the age of 18. It always recommended that you start the ball rolling as soon as possible when everything is likely to be still fresh in your mind. If the injured party has a significant intellectual impairment, whether as a result of the negligence or not, the general 3 year time limit does not apply so even if this person is over 21 and the incident occurred when they were born it is still worth seeking a solicitor’s advice.
If you are pursuing a medical negligence claim on a child's behalf it is possible they will be eligible for, Community Legal Services funding (CLS), which used to be known as Legal Aid. There are two parts to these criteria which have to be met for a claim to be funded via this method, which is merit and means. The commission will have to be satisfied that there are reasonable grounds in existence for starting an investigation and, where it is appropriate, for the case to progress to a full claim. The child's financial circumstances are also relevant as with the child being the claimant is it his or her means that are assessed, not their parents. There are effectively two Stages to Funding
You must possess the necessary mental capacity in order to make a legal claim for yourself. If a person lacks the mental capacity they can have a claim lodged on their behalf by a third party. This person is referred to as a 'litigation friend'. As a child cannot by law lodge their own claim they will always have a litigation friend, usually one of their parents. When a litigation friend is in place it is they who will both choose and subsequently instruct the solicitor and act in the claimants best interests. It is the claimants financial means which determine whether or not his/her legal costs will be covered or not and not the litigation friend.
Once everything has been put in place, such as funding, the next step is your solicitor requesting copies of all relevant medical records and notes from your GP and the hospital. She will then check them over to ensure that they are complete and in the correct order before forwarding them to the independent expert/s to prepare their report. Your records remain strictly confidential during this time.
The independent experts will usually consist of professionals such as obstetricians, paediatricians, midwives, neurologists and radiologists. It is essential at this early stage that your solicitor correctly identifies the experts needed to assess your claim. If these experts prepare a report that finds the medical treatment received was of an acceptable standard and in accordance with that deemed as normal practice there will be no claim. If, however, their report concludes that the victim received sub-standard medical treatment and that a breach of duty of care occurred then the claim will progress to the next stage. Your solicitor should possess the understanding of the report in order to be able to explain the report fully so you fully understand what it contains. It could be appropriate at this time to also have present at the meeting a barrister and those experts who prepared the report. They will be happy to answer any of your questions and if you are unhappy with their report you are entitled to request a second opinion from a different expert within the same professional field. However, you will need to discuss the funding options with your solicitor.
If the experts reports are supportive of your claim your solicitor will then contact the defendant setting out the full details of your claim. This will include such details as your allegations and the approximate amount of compensation you are seeking, the latter being dependent on the extent and nature of the claim. The defendant then has 4 months to respond to this correspondence and their response will often give you an early indication of the outcome of the claim and could possibly even include an admission of liability. If this is the case and the defendant does admit liability at this early stage it eliminates the need for a trial. Even if court proceedings do begin many cases are still settled out of court when the two parties agree on the level of compensation to be awarded.
There is a possibility that the trial could be split. When this happens the first step is to consider liability for causation and breach of duty. If liability is then proven, or admitted to, the compensation will then be considered at a later date. There are several reasons for this including the following;
The one main advantage of a split trial is that you can be certain of the final outcome.
The monetary compensation is awarded to the claimant in order to provide them with the financial resources needed to obtain the specialist care and support they need and to give them the chance to have a choice when it comes to this provision.
The compensation is awarded to place the victim in the same position as they would have been had the negligence not taken place. However, this is a very grey area as it is impossible to do this for somebody who, due to their impairment caused by the negligence, had every aspect of their daily life affected and will do so for their rest of their life.
There are numerous factors to take into consideration when a compensation award is being calculated. The future expenses which are specific to the needs of the individual are calculated by following advice from a wide range of health experts including occupational therapists, rehabilitation consultants, physiotherapists and psychologists. The amount of compensation awarded should reflect the following;
A compensation award is usually split into two separate elements;
If the compensation awarded is for a child then the court will usually hold the money for them until they reach 18. After this it can be paid out for that person to take control of it, the assistance of a case manager is often used in such instances. If any individual who is awarded compensation is incapable of managing their own financial affairs properly the money will be administered by the Court of Protection. However, parents or spouses are usually involved in the awards management along with any decision making relating to it.
When making a claim for medical negligence, it is important to be aware of the relevant case law pertaining to your case. Case law is made by judges presiding over a particular case and represents the official opinion of the court. When a case comes before the court relevant laws, regulations and statutes will be used, and the judge will also refer to any precedents that have been set in past cases to come before the court – which is where case law comes in. The court doesn’t necessarily have to use case law as a precedent, but it can often be used to help settle similar cases. There are many important case law precedents for personal injury claims which we have listed below. For more information on how Cute Injury can help, get in touch today using the options below:
The Defendant GP wrongly diagnosed the Claimant with colic when in fact he was suffering from meningitis. As a result of the misdiagnosis, the Claimant suffered from mental and physical disabilities. The Claimant brought an action against the Defendant GP in clinical negligence. At first instance this claim failed. Owen J had found that whilst the Claimant would have avoided being disabled if he had been referred to hospital on the day on which he was examined by his GP, the misdiagnosis or failure to refer the Claimant was not negligent. Owen J relied on the Defendant GP's notes at that time. It was common ground between medical experts that if the notes kept by the GP were accurate and in contrast to the account presented by the Claimant's mother then the GP was not in breach of their duty. The Court of Appeal dismissed the Claimants appeal on the basis that Owen J had not made an error in relying upon the GP's records. Court: Court of Appeal (Civil Division) (England & Wales)
In this case the Court of Appeal dismissed an appeal that was presented by a GP against a decision for a judgment for the respondent who was a patient that had brought a medical negligence claim for damages due to delayed diagnosis of breast cancer. It was the patient's case that she had a consultation with the appellant GP back in 2006. During this consultation, the GP had examined her breast and incorrectly Diagnosed the patient, stating that it was a blocked milk duct; this then delayed the diagnosis and treatment for breast cancer. The GP denied that any such consultation had taken place. This was on the grounds that there were no notes relating to this consultation, and had she seen the lump in question, she would have referred the patient to a breast clinic. The Court of Appeal decided that the Judge was entitled to prefer the evidence of the patient as to whether the consultation had taken place and at which the GP had misdiagnosed the lump. In particular, the Court of Appeal held that in deciding the matter of the truthfulness of both witnesses, it was open to the Judge to accept part of such witness' evidence and reject other parts. Court: Court of Appeal (Civil Division) (England & Wales)
This case involved a claim for damages for alleged professional negligence brought by the Claimant against the Defendants. This case was dismissed by J Holroyde. The Claimant alleged that the Defendants' hospital staff had failed in their duty to identify or to treat a Group B Streptococcus infection. This infection was carried by the Claimant's mother at birth and which had in turn caused the Claimants brain damage. Holroyde J held that the probable cause of the Claimant's brain damage could not be identified. Holroyde J went further and held that the care and treatment of the Claimant would not or should not have been any different even if the Defendant's staff had identified the infection that was carried by her mother. Court: High Court (Queen's Bench Division) (England & Wales)
In this case Judge Stockdale QC, sitting as deputy High Court judge, granted the Defendant hospital trust a summary judgment in regard to all outstanding issues in the underlying clinical negligence claim that was brought against it. Judgment by consent had been entered in regard to part of the claim due to an admission of a breach of duty of care in a partial sense. However, summary judgment was entered in regard to other more discrete but serious allegations of breach of duty. Including, the surgery had been carried out without the Claimants consent and was barbaric, (on the grounds that they did not have real prospects of success). The original expert that was appointed in support of the Claimant's case later withdrew, and due to the terms of a Court Order, the Claimant was barred from relying on new expert evidence as he had failed to obtain such expert evidence by the set date. Court: High Court (Queen's Bench Division) (England & Wales)
In this case, Coulson J decided to dismiss the Claimant's claim for damages that was brought against the Defendant NHS trust. The Claimant in this case alleged that he had received negligent treatment when he was admitted into one of the trusts hospitals. It was held by Coulson J that the Defendant had failed to diagnose the claimant with Cauda Equina Syndrome ('CES') and thus did not request an urgent MRI. When looking at the evidence, Coulson J found that had the MRI scan been undertaken earlier, emergency surgery could have been performed around 48 hours earlier than it had been. However, the surgery was performed and was unsuccessful and the claimant was left with no sensation below the waist. Based upon the majority of the expert’s opinion, Coulson J found that had the surgery been carried out 48 hours prior, that on a balance of probabilities the claimant's prospects of making a recovery were less than 50%. Taking into account the expert evidence, that the swift onset of CES and deterioration in the claimant's condition reduced his prospects of recovery even further, Coulson J found that the claimant had failed to establish causation. Court: High Court (Queen's Bench Division) (England & Wales)
This matter concerned a preliminary issue of fact in a clinical negligence claim. Mackay J was responsible for making a preliminary factual finding in regard to what had occurred during a consultation by the Claimant patient with the Defendant general practitioner concerning a lump in his groin, which turned out to be a malignant melanoma. In deciding the preliminary issue of fact, Mackay J found that it was more likely than not that that the Defendant had asked the Claimant why he was concerned about the growth on his groin, and the Claimant had responded, (with words to the effect) that it had grown, itched and bled and the Defendant then diagnosed it as a sebhorrhoeic wart. Court: High Court (Queen's Bench Division) (England & Wales) Medical Negligence Resources >>> Clinical Negligence Protocol >>> How to make a claim for surgical error >>> Birth injury compensation claims >>> 4th degree perineal tears >>> Oxygen deprivation at birth >>> Hair transplant gone wrong >>> How to make a birth defect compensation claim >>> Cerebral palsy claims advice >>> Misdiagnosis claim advice >>> What is Congenital Hip Dysplasia?