Medical Negligence FAQs
Please see below common medical negligence questions:
Medical Negligence FAQS
What is medical negligence?
Medical negligence, also known as clinical negligence, is where an injury is caused or an existing condition is made worse due to poor care provided by medical professionals. These include injuries that occur while being cared for by the NHS or private healthcare providers.
How do I make a medical negligence claim?
- Talk to us to help you understand whether you have a claim. We’ll meet you face-to-face before taking the case on. The appointment can take place at your home, in hospital or at our offices, whatever is best for you.
- Following our meeting, we’ll advise you about the prospects of success, the potential value of your claim and how long it will take. We’ll keep you informed of progress and consult you about all decisions relating to your case.
- You will need to provide us with as much information as possible, including the result of any formal complaints made to the NHS, police or other organisations.
- If we all agree that Osborne Law should take your case on, we will discuss the funding of your claim including whether to run your claim under a No Win No Fee agreement.
- We will assign a team to your case and ensure that you have direct access to a case worker who will keep you informed of the progress of your claim and consult you about all decisions relating to your case.
What types of medical negligence can I Claim for
- Medical misdiagnosis – where a condition gets missed and goes undiagnosed or when a diagnosis is wrong.
- Mistakes during surgery – includes incidents where the wrong operation was performed, infections caused by poor hygiene and cosmetic surgery that has led to disfigurement or scarring.
- Prescription errors – you have been prescribed the wrong medication, incorrect dosage or together with another drug that shouldn’t be taken together.
- Negligent clinical advice – failure to warn of risks including making alternative treatments clear so that you could make an informed decision.
- Pregnancy and birth injuries – sustained by mother or baby during pregnancy, while in labour or following the birth.
How long do I have to bring a medical negligence claim?
Medical negligence claims are subject to strict time limits which if missed, means you could lose the opportunity to pursue your case forever. This time limit is known as the limitation period.
We would recommend against judging the calculation of your limitation period without expert advice from a specialist solicitor.
The law governing the limitation period is set out in The Limitation Act 1980. In short, you must issue a Claim Form at Court within three years of the date of negligence or the date you first had knowledge of the negligence, whichever is the later.
Calculating the limitation period is fraught with complications so it is important to take legal advice as soon as possible, should you wish to bring a claim. There are particularly complex rules for assessing the “date of knowledge” of the negligence.
The three years can slip by quickly and delaying increases the risk of losing vital evidence. We would therefore recommend consulting a solicitor ideally no later than 12-18 months after the incident of negligence, to avoid the problems which can be caused by delay and to give your claim the best chance of success.
Are there any exceptions to the time limit?
- If someone has passed away as a result of medical negligence, the limitation period is calculated to expire three years from the date of death of the injured person or the date of the Personal Representative’s knowledge, whichever is the later.
- The limitation period for any claim brought by a child (defined as those under the age of 18) does not begin to run until the date of their 18th birthday which effectively means that they have until their 21st birthday to issue court proceedings.
- Where the person bringing the claim lacks mental capacity, there is no time limit for issuing court proceedings. Assessing capacity is not always straightforward and solicitors have to tread carefully when determining whether their client lacks the capacity to make their own decisions or not.
- The Court has power to exercise its discretion to allow court proceedings to be issued outside of the limitation period, but this is reserved for exceptional cases and there are very specific criteria set by the courts to trigger the Court’s discretion to allow a claim to proceed out of time.
How long does a medical negligence claim take?
It is very difficult to exactly say how long a medical negligence claim will take from start to finish. It depends on the nature of your case, the complexity of your case, how long it takes to obtain all the evidence (medical records, witness statements, medical reports etc).
It also depends on the stance the Defendant takes. The NHS Trust’s will usually report to the NHSLA, the governing body of the NHS Trusts. A lot will depend on the attitude of the NHSLA and or the NHS Trust.
If legal proceedings are needed, they must be issued at Court no later than 3 years after the date of your injury or 3 years from the date that you knew that the treatment/care you received was negligent. This may happen at a later date, i.e. when you are seen by another specialist, who then diagnoses your injury and explains the cause of the injury to you and explains that it was related to previous medical care that you received.
How we can help
We can provide advice on any tertiary advice and assistance that you may require during the life of your claim. If the Defendant admits liability for your injury we can apply for an interim payment of damages on your behalf to assist in speeding up the litigation process.
How much compensation will I receive when making a medical negligence claim?
Medical negligence compensation can be claimed in the following forms.
The amount of general damages will depend on the severity of your injury, the effect it has had on you and how long it takes you to recover. We will need you to be seen by an independent medical expert so that we can obtain a medical report on your injury and its affects.
We need a medical report on the full effects of your injuries to enable us to calculate the value of your claim. If we have a medical report out assessment of the value of your claim will be more accurate than if we do not
The amount of special damages will depend on the expenses that you have incurred as a consequence of your injury such as travel expenses, prescription charges, the value of care provided to you by relatives/friends, any medical fees, loss of earnings, damaged possessions. It is helpful if you keep receipts of the expenses you incur as it will make it easier for us to prove your losses.
Past and Future losses can be claimed but interest will only be paid on past losses once proceedings have been issued on your behalf. Interest cannot be claimed on future losses.
If you were partly to blame for your injury, your compensation may be reduced to reflect your share of the blame. Although, this can but rarely happens in medical negligence cases.
Sometimes if a claim is disputed, the Defendant will offer reduced compensation as a compromise and to entice early settlement. If this happens, we will advise you on whether the reduced sum should be accepted, or whether your case should proceed to court.
The Defendant is under an obligation to repay to the government any social security benefits which you have received as a result of your injury up until the date of the compensation award.
The Defendant can deduct these from your compensation on a “like for like” basis. For example if you have claimed benefits from the state because of you were unable to work because of your injury a claim will be made on your behalf for your loss of earnings and any benefits paid to you by the state will be repaid on your behalf to the government by the Defendant and you will receive compensation for your loss of earnings.
How we can help
We can provide you advice on any tertiary advice and assistance that you may require during the life of your claim. If the Defendant admits liability for your injury we can apply for an interim payment of damages on your behalf. We can also assist you in obtaining receipts/proof of expenditure from third parties as part of your claim.
Will I have to pay to make a claim?
No. Your medical negligence claim may be funded by:-
- Conditional Fee Agreements (No Win No Fee agreements)
- Before the Event Insurance (BTE)
We offer Conditional Fee Agreement (No Win No Fee Agreement) and we can offer delegated After the Event (ATE) insurance with deferred premium (payable at the end of the case) to protect you against any adverse costs.
We use the Law Society’s approved Conditional Fee Agreement
We guarantee that you will not have to pay anything if we are unsuccessful in obtaining compensation for you. If this happens, we are paid nothing.
If your claim is successful, you may have to pay legal fees and expenses out of your compensation, but we guarantee that this will not exceed 25% of the compensation awarded to you and this includes the ATE insurance premium and IPT.
These guarantees only apply if you pursue your claim with us for as long as it has reasonable prospects of success, follow our professional advice and do not deliberately mislead us.
The deduction from damages
There are two elements to the deduction from damages:-
- A “success fee” to cover us for the risk of losing your case and being paid nothing.
- A premium for insurance to cover you against the risk of having to pay the other side’s legal fees or your expert fees and expenses.
We guarantee that the deductions will not exceed a maximum of one-quarter of your compensation.
The success fee is a percentage uplift on our normal fees to cover us for the cases we lose. It is not a percentage of your compensation.
The amount of the success fee depends how risky your case is. The riskier, the high the percentage uplift on our normal fees.
ATE Insurance cover
The insurance policy is to cover you against two risks:-
1. We will fund the experts’ fees and other expenses. If your claim is successful, then the other side will pay these expenses. If it is unsuccessful, the insurance company pays these fees for you.
2. If you reject a formal offer of settlement and then a Judge awards you the same amount or less, the normal rule is that you have to pay the other side’s costs from the date when you should have accepted the offer. However, if we advised you to reject the offer and you took our advice, then the insurance will pay the other side’s costs for you.
Remember that we guarantee that the success fee and the insurance premium combined will not exceed 25% of the compensation awarded to you.
If you have BTE insurance cover that provides cover for you for clinical/medical claims at the time of your injury, we can write to your insurers to request cover under such policy to investigate your potential claim.
Can I change solicitors?
Our Clinical Negligence team regularly receive calls from clients who have instructed other law firms asking the question – can I change my solicitor?
If you have a medical negligence claim but are not happy with the advice you are receiving we have specialist solicitors able to assist. Find out more about how to change your solicitor.