If you want to find out more about medical negligence cases and the process of claiming for medical negligence, read our complete guide below.

1. What is Medical Negligence?

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.

What is Clinical Negligence?

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.

What is classed as Medical Negligence?

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.

What is the Law of Negligence?

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.

2. Making a Complaint

  It may be the case that you feel an apology and explanation is enough for the ill treatment that you have received. In this case you have a few different options:

  • You can make a complaint to the doctor or hospital where you were treated to ask for an explanation and apology;
  • You can make an official complaint through the NHS, by using the NHS complaints procedure;
  • You can contact the Healthcare Commission who is responsible for monitoring and improving the quality of care in the UK; or
  • If you want to make a complaint about a particular doctor and their fitness to practice, then you can contact the professional regulatory organisation in your area.

3. Making a Claim

  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:

  • The health professional who provided your treatment owed you a duty of care. This is the case with all health care professionals so this is usually not an issue

  • The medical professional that provided your treatment or care was negligent. This is the key part of proving a medical negligence claim; you must contrast their acts to that of fellow professionals. The standard of care given by them must be consistent with that of a responsible body of medical opinion; and

  • You suffered harm as a result of the medical negligence. This is known as “causation”.

 

Examples of Medical Negligence

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:

  • Failure to diagnose your condition
  • Misdiagnosing your condition
  • Failing to investigate and arrange for the correct treatment of your condition
  • The treatment being delayed and resulting in unnecessary suffering
  • Failing to warn you of the risks involved with a series of treatment or surgery
  • An avoidable surgical error
  • Mistakes in prescriptions or other treatments
  • Poor treatment or unprofessional conduct that results in pain or suffering

4. How to Fund Your Claim

  Once it has been decided that your case is worth pursuing, you will then need to arrange funding. There are always options available and some of these include:

  • Legal Expenses Insurance
  • Private Funding
  • No Win, No Fee Arrangement
  • Trade Union Funding

  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.

5. Investigating Your Claim

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 that 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”.

6. Commencing Court Proceedings

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:

  • A full statement of your claim laying out the details of the allegation of negligence referred to as the “Particulars of Claim”

  • A 'Schedule of Damages'. This will lay out all the financial losses as a result of the negligence as well as estimated future losses.

  • A full medical report on your condition

 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.

7. Court Timetable

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:

  • Any relevant documents are provided – this is known as 'Disclosure'

  • Any expert reports are exchanged 'Mutual exchange of expert evidence'

  • Exchange of reports from yourself and all witnesses, including the healthcare professionals who are responsible for your care.

  • An 'Experts Meeting', where medical experts on both sides get together to discuss the details of the case and try to resolve any conflicting issues. This meeting usually happens without the presence of any lawyers.

This timetable enables you and the Defendant to try and negotiate an agreement before progressing to court, however, this can happen at any time 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.

8. The Trial

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.

9. Interim Payments

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.

Your Medical Negligence Action

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 of 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.

10. Settling your Claim

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 trial.

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 the power to approve any agreements that have been negotiated.

11. Claim Valuation

  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:

  • “General damages” which equates to the pain and suffering as a result of the negligence as well as “loss of amenity”, which means the effect the injury has had on your day to day life such as your ability to indulge in hobbies;

  • Financial losses that have been incurred as a result of the accident, injury or illness (“past losses”). These include any losses that have been incurred since the start of your injury, so it is very important for you to keep an accurate log of any expenses incurred so you can claim for them later. These can include receipts and pay slips etc; and

  • Any financial losses that will be incurred in the future as a result of the injury (“future losses”).

 

Pain and Suffering

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

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:

  • Loss of earnings from your previous employment. This includes basic pay as well as overtime;
  • Any sick pay that your employer had to cover for the period whilst you were sick;
  • Employment benefits that you have lost including medical insurance, fuel allowance, company car, holidays, company stocks, car servicing, accommodation, free/reduced food at work,  concessionary fares, free board and lodgings, allowances for children’s education and housing and telephone allowance etc;
  • Any loss of company pension; and
  • If you are self-employed – the effect your illness or injury has had on your ability to grow the business.

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.

Assistance

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:

  • Nursing assistance;
  • Any required domestic assistance such as help with cooking, cleaning, shopping and ironing; and
  • Any additional costs of maintaining your home such as gardening, car maintenance and DIY.

 

Medication and Equipment

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, prepayment prescription certificates, painkillers and bandages, as long as the medication relates to your injury or illness.

Accommodation Costs

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.

Specialist Equipment

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.

Additional Costs

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.

12. Provisional Damages

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 predetermined time frame.

13. State Benefits

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.

14. Setting 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:

  • Jobseekers' allowance
  • Housing benefits
  • Income support
  • Council tax benefits
  • Working families tax credits

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 payout, including medical negligence claims. If you receive benefits and do not want your compensation payout to affect them, a personal injury trust is the ideal solution.

15. Court of Protection

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.

16. Time Limits

  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.

How can Cute Injury help you?

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:

  • Hold a corporate accreditation from the Association of Solicitors Personal Injury Lawyers (APIL);
  • Are on the referral panel for AVMA (Action for Victims of Medical Accidents) as well as the referral panel for the Law Society’s clinical negligence referral panels; and
  • Belong to APIL (Association of Personal Injury Lawyers).

  With these credentials, you can have peace of mind knowing that your claim will be in safe hands.

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