Frequently Asked Questions: clinical negligence claims
Clinical negligence claims can often be complex and raise a lot of questions around what constitutes a claim, time limits and compensation. Associate Solicitor in our clinical negligence team, Oonagh McCurry, sheds light on some our most Frequently Asked Questions.
1) What is clinical negligence?
Clinical negligence (or medical negligence) is defined as suffering an avoidable injury as a result of substandard medical treatment. In these cases, you may be able to make a claim for compensation.
2) What do I need to prove for a successful clinical negligence claim?
To succeed in a clinical negligence claim, you must be able to show that:
- The treatment you have received fell below a reasonable standard of care (“breach of duty”) and;
- You have suffered significant injury because of that negligence (“causation”).
It is necessary to prove both factors. If you can only establish one factor without the other, a claim for clinical negligence cannot succeed.
3) What are some examples of clinical negligence?
Examples of these types of claims are:
- Birth injury (either to the baby or the mother)
- Misdiagnosis or delayed diagnosis
4) Is there a time-limit to make a clinical negligence claim?
Yes, there are strict time limits for making a clinical negligence claim:
- A claim must be brought within three years of the date from which you first knew, or suspected, that you were injured because of the alleged negligence.
- In cases involving a child (anyone under 18) the case must be pursued no later than three years from the date of their 18th birthday.
- Where someone has died within three years of the date of the alleged negligence or knowledge of that, the deceased’s representative has three years from the date of death to bring a claim on behalf of the estate.
Based on these time limits, it is important to seek legal advice as soon as possible.
5) How much compensation could I receive?
Compensation will depend on your individual case and is based on several factors including:
- The severity of your injury;
- Your current condition, and;
- Future prognosis — i.e. how likely you are to recover and to what extent.
As well as compensation for your injury (general damages), you can also claim for related financial losses (special damages) including:
- Costs for care and assistance;
- Medical expenses, including medication and treatments.
6) What is the process for making a clinical negligence claim?
- The first step is to request copies of your GP records and the records from the hospitals where you have received treatment. It’s important to review these documents.
- Independent expert evidence will be obtained to confirm whether the treatment you have received was negligent and caused you injury. It may be necessary to instruct more than one expert.
- If independent medical evidence is obtained to support your claim, we will send a Letter of Claim to the defendant (the doctor or NHS Trust), setting out the specific allegations of negligence and details of the injuries and other losses you have suffered as a result.
- The defendant will then have four months to investigate your claim stating whether or not they accept fault.
- We will then attempt to negotiate a settlement on your behalf. If we are unable to negotiate a settlement, it may be necessary to issue Court Proceedings.
7) How long does a clinical negligence claim take?
The duration of a clinical negligence case can vary depending on various factors such as:
- The amount of expert evidence required;
- Whether the claim is defended, and;
- Whether court proceedings are issued.
We are committed to ensure you are kept fully informed of the likely timescales throughout the duration of your case.
8) How are clinical negligence claims funded?
Your solicitor will be a clinical negligence specialist and will determine the most appropriate funding arrangement for you. Options for funding can include:
- Legal Expenses Insurance
As part of your home insurance policy you may have legal expenses insurance as an ‘add on’ which may cover the costs of bringing a clinical negligence claim.
- Conditional Fee Agreement (“no win, no fee”)
If your claim is unsuccessful, there is nothing for you to pay. If your claim is successful, up to 25% will be deducted from the compensation awarded to cover our legal costs.
Legal Aid is only available for clinical negligence claims relating to babies that have suffered significant neurological injury during pregnancy, delivery or within the first 8 weeks of life.
9) Who will be handling my case?
We are an experienced team of specialist clinical negligence solicitors who include members of the Law Society Clinical Negligence Panel. Your case will be dealt with by a qualified solicitor specialising in clinical negligence.
Contact our specialist clinical/medical negligence solicitors on 033 3344 9613 or email [email protected].