In a clinical negligence case you would be entitled to claim for two types of compensation:
It can be difficult to advise at the outset as to the amount of compensation you may obtain if your case is successful as this will depend on the particular circumstances of your case, and expert evidence may be required. As your case progresses your solicitor will be able to give you a more accurate estimate of what your case is likely to be worth.
The vast majority of cases settle through negotiation, with there being no need to take the matter to a full trial (i.e. argue your case in court, before a judge). If your case does go to trial, it will inevitably take longer to conclude than if it were to settle outside of court through negotiation. Although it is rare for cases to go to trial. Statistics show that just 0.5% of all clinical negligence cases go to trial.
If your case reaches the trial stage, then you will be called as a witness to give evidence in front of a judge. Your experts and other witnesses will also give evidence – as will the defence witnesses. If your claim gets to this stage, we can advise you about it in more detail.
Any injured person under 18 is considered to be a child. They are considered unable to have ‘capacity’ to conduct the claim themselves and deal directly with solicitors.
A claim involving a child is therefore conducted by a litigation friend, who acts on the child’s behalf. A litigation friend is often one of the child’s parents or a guardian, however anyone that the Court deems suitable can be a litigation friend, for example a relative or family friend, a solicitor or someone who has a lasting power of attorney.
Your solicitor will be able to guide through the process of being appointed as your child’s litigation friend.
When someone dies it may be possible for you to bring a claim on behalf of their estate, as long as you have standing to do so.
You will need obtain a Grant of Probate or Letters of Administration in order to instruct us to act in such a case.
The General Data Protection Regulations and the Data Protection Act 2018 replaced the Data Protection Act 1998 on 25 May 2018.
Since 25 May, patients must be given access to their medical records as a Subject Access Request (SAR) including when a patient authorises access by a third party such as a solicitor. Rights of access are not limited to health records held by NHS bodies and apply to private health sector and health professionals’ private practice records.
Are there time limits which apply?
Once the request has been received and verified, the patient must be provided with a copy of their data without delay and within 28 days from the date of the request.
This time limit can be extended for 2 months where the request is complex or where the data controller needs more time to collate and supply the data however, the patient must be informed of this extension within 28 days and be provided with an explanation as to why this is necessary.
What are the costs involved in requesting medical records?
The medical records that already exist will be accessible for free, however the Trust or GP is entitled to charge extra for the cost of making copies and posting the records to you if the request is found to be excessive although these circumstances are likely to be rare. Instances where a request may be deemed “excessive” include if an individual makes a SAR and then makes a second request for the same information within a short period of time.
Who should I write to?
For more information see our legal guidance article on requesting medical records.
The rules relating to the disclosure of a deceased person’s medical records differs significantly from the general rules about release of medical records. The GDPR does not apply to data concerning deceased patients.
Who can request medical records after a death?
Under the Access to Health Records Act 1990 only certain people have the right to access the medical records of someone who has died. Disclosure is allowed to:
You may need to provide evidence that you fall under one of these two categories. This is fairly straightforward if you are looking after the estate and are in possession of a copy of the Grant of Probate (if you are the Executor of the will), or a copy of the Grant of Letters of Administration (if you are the Administrator).
The situation may require further explanation on your part if you are not the Personal Representative but believe you may have a claim resulting from the person’s death.
The same procedures apply as when requesting Medical Records of a person who is alive.
The cost of requesting a deceased person’s medical records
Changes to the Data Protection Act 2018 have also amended the Access to Health Records Act 1990 which now states access to records of deceased patients and any copies, must be provided free of charge.
The professional duty of candour is a statutory duty imposed on all healthcare professionals.
Every healthcare professional must be open and honest with patients when something that goes wrong with their treatment causes, or has the potential to cause, harm or distress. This means that healthcare professionals must:
Healthcare professionals must also be open and honest with their colleagues, employers and relevant organisations, to take part in reviews and investigations when requested, and encourage a learning culture by reporting adverse incidents that lead to harm, as well as near misses.
They must also be open and honest with their regulators, raising concerns where appropriate. They must support and encourage each other to be open and honest, and not stop someone from raising concerns.
Click here to access our quick guide on how to make a complaint, and a template complaint letter.
The NHS Complaints Procedure does not offer compensation. It can only offer an explanation of your treatment. Complaints usually have to be made within one year of the alleged negligent treatment.
If you are making a complaint against an NHS hospital they will usually have a Patient Advice Liaison Service (known as PALS). Click here to find your local PALS.
Complaints will be investigated internally by the hospital – they are not obliged to call in external investigators.
It may take some weeks for your complaint to be investigated. You may be invited to attend meeting to explain your side of the complaint. It may be that you would prefer to deal with matters just by letter or email. There is no set process that must be followed.
At the end of the investigation you will receive a letter setting out the NHS response to your complaint.
If you are not happy with the response to your complaint, you are entitled to request an Independent Review by the Parliamentary and Health Service Ombudsman.
The independent review will be undertaken by the Parliamentary and Health Service Ombudsman (PHSO). The PHSO will make a final decision on your complaint and will look at it afresh. There is no charge for this service.
Click here to access our quick guide on how to make a complaint, and a template complaint letter.
Making a formal complaint to your GP will not lead to compensation. A GP’s complaint service can only offer an explanation of your treatment. Complaints will be investigated internally by the GP practice – they are not obliged to call in external investigators.
It may take some weeks for your complaint to be investigated. You may be invited to attend a meeting to explain your side of the complaint. It may be that you would prefer to deal with matters just by letter or email. There is no set process that must be followed.
At the end of the investigation you will receive a letter setting out the response to your complaint.
Alternatively, if you do not wish to complain directly to your GP then you can complain to the local Clinical Commissioning Group. A full list of all of the CCGs can be found here.
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