The law states that any medical professional or organisation who is caring for a patient owes a ‘duty of care’ to the patient. If that duty of care is breached and causes an injury then a claim can be made
The claimant needs to show that they have suffered an injury as a result of negligent medical treatment. In order to bring a successful claim for medical negligence, you will need to prove two elements which are referred to as ‘breach of duty’ and ‘causation’.
Duty of care – it is widely accepted that a medical professional owes their patient a duty of care. To establish that there has been a breach, you will need to show that the treatment received fell below a reasonable standard. A ‘reasonable’ standard of treatment is considered to be that which you would expect to receive from a reasonably competent medical professional in the specific area of medicine concerned at the time of the care.
Causation – to establish causation you will need to show that the breach of duty directly caused you to suffer a physical or psychological injury that you would not have otherwise suffered.
It does not always automatically mean that negligence is established just because a medical professional has made a mistake. It is essential to show that the mistake has directly caused a significant injury. Causation can be a very complex issue as it may be difficult to know whether the mistake caused the injury, or whether the injury was caused by some other underlying problem and would have occurred irrespective of the mistake.
Taking legal action cannot speed up any ongoing medical treatment, or make available any other types of treatment from a doctor or hospital. The focus of a claim is to seek financial compensation for any injury or loss arising directly out of the negligence. Other beneficial consequences of a successful medical negligence claim include:
It is important to note that these cannot be ordered by the court. Our team will work closely with you and your family to advise and achieve a satisfactory outcome.
If you believe your case should be investigated then we will explore all funding options with you in an open and transparent manner. There are four funding types available for medical negligence cases. These are:
Conditional fee agreement (‘No win, no fee’)
The vast majority of our cases pursued under a Conditional Fee Agreement (CFA), also known as a ‘no win, no fee agreement’. This means that we would not charge you any legal fees unless you won your case, and would seek to recover our costs from your opponent in the first instance. The agreement permits a maximum deduction from your damages of 25%.
ATE insurance – When we are acting on a no win no fee basis we may also advise our clients to take out a specialist type of insurance called After the Event Insurance Policy (ATE insurance). This is to protect you in the event your claim did not succeed. Your solicitor will explain this in more detail if you instruct us.
Legal Aid funding
Legal aid or Public funding from the Legal Aid Agency is still available for some cases. However, Legal Aid is now limited to cases where a child has suffered a brain injury during pregnancy or birth, or shortly after birth, which has resulted in severe physical or mental disability. Legal Aid is means tested but it is the child’s assets who are assessed, not the parents. Consequently, virtually all new born children will be eligible for legal aid.
Before the event legal expenses insurance – also known as BTE insurance.
Many people have this type of insurance but are unaware of it. Please carefully check any insurance policies that you have, including motor and household insurance, and credit card agreements. You should also check any union membership you have as this may include a form of BTE insurance. It is important to check these things as recent changes to the law mean that ‘no win, no fee’ arrangements may result in some deductions to any compensation you recover. BTE insurance can sometimes quite restrictive in terms of who you can instruct and how they can pursue the case for you.
Private funding
If we are not able to act for you on a no win no fee basis then it may be possible to instruct us to act on a private retainer.
If you would like to discuss any of these funding methods further, you can call us on 0800 437 0322.
The date by which a claim must be brought is called the “limitation date”. Calculating the limitation date in medical negligence cases is often not straightforward.
Exceptions to the usual 3 year rule – children
The limitation period does not start to run for children until they reach the age of 18 years, so the limitation period for children expires on their 21st birthday.
Exceptions to the usual 3 year rule – patients without capacity
People who lack capacity (the ability to manage their own affairs) are able to issue proceedings at any time. The law states that if a person lacks capacity then the three year period does not commence. In cases of fluctuating capacity the limitation period may start to run if mental capacity returns.
This will depend on who the Defendant is.
NHS Claims – The NHS is self-insuring. All compensation payments made by the NHS is paid from Government funds from a budget managed by the National Health Service Litigation Authority (NHSLA). The NHSLA employs a panel of approved solicitors who represent NHS Trusts.
Claims against private doctors – A doctor or medical professional working in the private sector is not covered by the National Health Service Litigation Authority scheme. They arrange their own insurance with specialist private insurance companies. The usual insurers are the Medical Defence Union (MDU), the Medical Protection Society (MPS) or the Medical and Dental Defence Union of Scotland (MDDUS). These organisations are funded by premiums paid by their members.
Claims against General Practitioners – GPs are not covered by the National Health Service Litigation Authority scheme. They arrange their own insurance with specialist private insurance companies. The usual insurers are the Medical Defence Union (MDU), the Medical Protection Society (MPS) or the Medical and Dental Defence Union of Scotland (MDDUS). These organisations are funded by premiums paid by their members.
Claims against Dentists – again, dentists are not covered by the National Health Service Litigation Authority scheme. They arrange their own insurance with specialist private insurance companies. The usual insurers that we deal with are the Dental Defence Union (DDU), Dental Protection (a subsidiary of the Medical Protection Society) the Medical and Dental Defence Union of Scotland (MDDUS). These organisations are funded by premiums paid by their members.
In a clinical negligence case you would be entitled to claim for two types of compensation:
General Damages: for the pain, suffering and loss of amenity caused by the injury itself.
General damages are calculated by reference to a publication called the Judicial College Guidelines (formerly the Judicial Studies Board Guidelines). These Guidelines are designed to provide a clear framework for the assessment of damages in medical negligence cases. These guidelines are well known by the Claimant and the Defendant’s solicitors and if a case goes to trial the Judge will use these guidelines to calculate the appropriate award for General Damages. In addition, another publication called Kemp and Kemp lists many different types of cases that have settled out of court or that have been decided at trial. This textbook is several hundred pages and is constantly updated.
By reference to the JC Guidelines and Kemp the solicitors at Hodge Jones Allen can calculate the value of the General Damages Claim.
Special Damages: Special Damages are the damages awarded for any past or future financial loss. These are individually calculated for each case. There is no textbook or guide for this part of the Claim. It is entirely dependent on the circumstances of the Claimant.
Special damages claim will comprise of;
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 length of time your case will take to conclude depends upon a number of factors. These include the extent and nature of the injury suffered, and whether your opponent denies liability.
We try to progress your case as quickly as we possible, but you should be aware that your case could take a number of years. We can give you a better idea about the timescale once we know more about your case and your opponent’s approach to it. We will ensure that you are regularly updated throughout your case.
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 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 they reach the trial stage then the Claimant 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 this situation becomes applicable to you, we can advise you about it in more detail at that stage.
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.
Before a Court appoints someone as a litigation friend, it will assess whether that person meets certain criteria to ensure they can do the job properly. The Court must be satisfied that the person in question:
If you wish to apply to be a child’s litigation friend, you must file and serve a certificate of suitability. This is a form which asks you to formally consent to act as a litigation friend, and sets out your suitability for the role.
If the child reaches the age of 18 during the claim, the litigation friend’s authority to act on their behalf ceases. All the parties involved in the proceedings will need to be notified, and the former child will need to sign a statement that they intend to carry on with the proceedings.
Yes, it may possible for you to bring a claim on behalf of a deceased person. In order to do so the family of the deceased will need to obtain a Grant of Probate. Applying for Probate is a process in which forms are submitted to the Probate Office. Only when Probate has been approved does the legal system recognise the Administrator or the Executor as being able to deal with the Deceased’s estate. The Grant of Probate is issued by the local Probate Registry. The process can take several weeks.
An ‘Administrator’ is a person who is granted Probate when there is no will in place when a person passes away. An ‘Executor’ is the person granted Probate when the deceased has made a will.
An Administrator or Executor is able to bring claims for all of the Dependants of as a patient who has passed away.
Once the Grant of Probate has been made the Executor will instruct Hodge Jones Allen to investigate the case. The Executor or Administrator is responsible for including all of the Deceased’s dependants in the claim.
Under the Data Protection Act 1998 everyone has the right to access their NHS and private healthcare medical records. Normally, the parents of children under 18 will be able to access their child’s medical records.
The healthcare provider disclosing the records is entitled to charge up to a maximum £50 to cover their administration fees. The records should be provided within 40 days of the request. If there has been more than one healthcare provider involved in providing treatment then separate requests will need to be made to each healthcare provider.
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.
I don’t think my complaint has been properly dealt with. If you are not happy with your complaint response then you are entitled to request an Independent Review.
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.
How do I make a complaint against my GP?
Making a complaint is sometimes a useful way to find out if you have a compensation case. 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 General Practioners’ 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 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.
I don’t think my complaint has been properly dealt with If you are not happy with your complaint response then you are entitled to request an Independent Review.
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.
