We’re here to answer all your questions about medical negligence claims
If you’re thinking about bringing a compensation claim for medical negligence, you’ll probably have lots of questions you want to ask us.
We’ve put together the answers to some of the most common questions we’re asked by clients. If you can’t find the answer to your question on this page, please get in touch with us on 0800 923 2080.
Q. When will the hospital or doctor know about my medical negligence claim?
A. When we first apply for a copy of your medical records, we’ll have to give the doctor or hospital some brief details about your claim.
Q. Should I make a complaint about my medical treatment?
A. You can complain instead of taking legal action, or before doing so. You don’t normally need a solicitor to complain, you can do it on your own, simply by writing a letter, or your local Independent Complaints Advocacy Service (ICAS) can help. You can find out more about this at www.seap.org.uk/icas/
If you’re complaining to the NHS, you should do so within 12 months of treatment. The NHS will send you an acknowledgment within three working days, and let you know how and when they will give you a formal response. This should hopefully be within six months of your complaint.
If you aren’t happy with the outcome of your complaint you can ask for a review by the Parliamentary and Health Service Ombudsman. This can take a lot of time, with no guarantee that it will lead to a satisfactory conclusion.
Q. Will the negligence claim affect my medical treatment? Will I be struck off my doctor’s list?
A. Not at all. You won’t be struck off a list or asked to leave your GP’s surgery. If anything like this ever did happen, you should complain to the Primary Trust and the surgery. Make sure to enlist the help of ICAS so that the issue can be resolved as quickly as possible and you can carry on getting the treatment you need. You can find out more at www.seap.org.uk/icas/
Q. Do I need to bring a negligence claim within a certain time of having treatment?
You normally have to make a claim within three years of the date of the allegedly negligent medical treatment. This could be three years from the date you first became aware of anything following negligent treatment. If you don’t make a claim within three years, then any claim you do make is likely to be what is known as ‘statute-barred’, i.e. out of time.
Sometimes there are exceptions – for example, for claims for children, who have until three years after their 18th birthday in which to bring a claim, or adults with mental difficulties, for whom there is no time limit.
Courts can extend time limits, but they don’t often do so. In other words, the sooner you start looking into making a claim the better.
There’s one final exception, which is when you may not know until much later that you’ve been injured. For instance, if there is a delay in diagnosing a medical condition, you won’t know about it until some considerable time after the harm was done. In this type of case, the three-year limit only comes into effect from when you found out about your injury.
One final point to note – three years can sound like a long time, but in terms of a compensation claim, you can soon run out of time. It’s best to seek advice as soon as possible.
Q. Can I obtain compensation through the NHS complaints procedure?
A. No. The NHS complaints procedure doesn’t currently award compensation. So if you’re looking for financial compensation, you’ll need to talk to a solicitor and make a claim through the court.
Q. If I decide to take legal proceedings, how will I fund my claim?
There are three ways you can fund a claim. The most common one is when we enter into a ‘no win no fee’ agreement, which is also known as a Conditional Fee Agreement (CFA). Alternatively, you could be eligible for Legal Aid, or you might have a legal expenses insurance policy that you could use, even if you might know you have it.
The main thing to note is that if your case is viable, we can always find a way to fund it, and we will choose the way that best meets your needs. We’ll do everything we can to keep the costs down – people often finding that bringing a claim costs them nothing. Find out more about ways to fund your claim.
Q. How will my compensation for medical negligence be paid to me?
Once your compensation has been agreed, we can give you advice on how best to fund your care. The court will decide whether the compensation should be paid in a lump sum or instalments, which are normally used if you need extensive long-term care.
Any compensation you receive after a successful medical negligence claim is designed to fund the extra levels of care and support you’ll need for your injuries. We can help you protect the real value of your compensation by placing it in a compensation protection trust. This means that you and/or your partner can continue to claim any means-tested benefits.
Q. What do I need to prove to win my medical negligence case?
You’ll need to prove two things: ‘Breach of duty’ and ‘Causation’.
Breach of duty is when you show that the treatment you received fell below a reasonable standard of care you would have expected to receive from a reasonably competent doctor in his or her field at the time of treatment. If the medical evidence showed that they acted in a way that was acceptable to most doctors in the same field, this will be a valid defence and your claim probably won’t succeed.
Causation is when you show that the failings in your medical treatment caused you to suffer an injury, and that you are entitled to compensation for those injuries.
Q. Will I get a fair hearing? Don’t all doctors close ranks?
If you have genuinely received poor treatment, then it is normally possible to find an independent expert in the relevant field who will say that, in their view, your care was sub-standard. Doctors understand that closing ranks simply brings their profession into disrepute. Expert witnesses are required to be impartial and have a duty to the court, rather than the party who instructs them. This means that it is possible to obtain a genuinely independent and impartial view.
Q. How long does a medical negligence claim normally take?
It depends on a number of factors – for example, whether your opponent is denying there was a fault, whether you need further treatment, whether the case needs a medical expert, and whether the case needs to go to Court. Your solicitor will be able to let you know how long it should take.
The good news is that most simple cases should be dealt with within 18 to 24 months. Although complicated claims can take longer, it is very rare for any new case to take more than three years.
Q. How much compensation will I receive for a medical negligence claim?
This depends on your particular situation. Compensation is made up of two parts:
- General damages – this is compensation for your pain, suffering and effects on your everyday life. The court will determine the amount by looking at the Judicial Studies Board Guidelines and the amounts awarded in recent similar cases.
- Special damages – this includes things like any financial losses you’ve incurred or will incur in the future. You’ll need evidence and documentary proof to support any claims for special damages.
Before we can let you know how much you could receive, we’ll need to obtain a medical report. This will set out your injuries and give full details of the treatment and your long-term prognosis. We could also include a claim for loss of earnings or other income, travel expenses and other costs that we can show were caused by the medical accident.
Future loss – depending on the seriousness of your injury, we may be able to pursue a claim for continuing future loss. For example, you may be unable to earn as much as you did before the accident, or need help with personal and household tasks.
All compensation must be proved to be a result of the alleged negligent medical treatment. If the link cannot be proved, then the court won’t award any damages. As the claimant, it is your responsibility to prove each and every aspect of your claim, including your entitlement to general and special damages.
Q. How do I choose a solicitor to handle my medical negligence claim?
In theory, you can choose any practising solicitor to handle a claim. However, in practice it is essential to make sure that they have expertise and experience in clinical negligence claims.
Ask your solicitor if they’re a member of a specialist panel, either the Law Society Clinical Negligence Accreditation Scheme or the Action against Medical Accidents (AvMA) Specialist Clinical Negligence Panel. If they’re not members themselves, they must be supervised by a panel member.
Q. What can Royds Withy King offer me?
At Royds Withy King, we offer you a specialist clinical negligence advice service, with an initial free interview in person at our offices or at your home. We can also carry out the interview by email or telephone if that’s easier.
We have extensive experience across a wide range of medical negligence claims that we have built up over the past 30 years. Thanks to the calibre of our professionals, when we take out a case on your behalf, you can be sure that Law Society and Action against Medical Accidents (AvMA) panel members will be supervising every aspect of your claim.