A guide to medical negligence compensation claims
This easy-to-follow guide looks at what you should know about making a medical negligence compensation claim.
How is clinical negligence defined?
Clinical negligence (often referred to as 'medical negligence') claims differ from other personal injury claims insofar as it is necessary to establish a 'breach of duty' on the part of the healthcare professional.
A breach of duty means that the standard of care received was below the standard that could reasonably be expected of a competent healthcare professional.
The NHS define clinical negligence as;
'a breach of duty of care by members of the health care professions employed by NHS bodies or by others consequent on decisions or judgements made by members of those professions acting in their professional capacity in the course of their employment, and which are admitted as negligent by the employer or are determined as such through the legal process' (sce: NHSla.com)
To make a successful claim it will be necessary to prove:
- that here has been a breach of duty (negligence)
- the breach of duty was the cause of the injury, damage or loss (causation)
Not all treatment that results in an undesirable outcome will result in the payment of compensation.
Sometimes an undesirable outcome is due to a known risk associated with the treatment, or due to a mistake that a doctor could reasonably have made in the circumstances. Compensation will only be paid in cases where the mistake is such that no reasonable doctor could have made it.
People are often unsure if they have been a victim of medical negligence as the circumstances can be far from straightforward.
Following the formal complaints procedure of the hospital or healthcare provider can help clarify the circumstances and inform the potential claimant about the events that occurred and whether it would be prudent to pursue a legal claim.
Set procedures for NHS and private health care providers have to be followed in most cases. Making an assertive complaint with the backing of solid legal advice behind you can lay strong foundations for a subsequent claim.
Your solicitor will guide you through the formal complaints procedures. For reference see:
- National Health Service (NHS) - the formal channel for complaints about NHS GPs, dentists, hospitals or pharmacists
- General Medical Council (GMC) - handles serious complaints about hospital doctors and GPs
- Health Service Ombudsman - Investigate about the NHS and health authorities if the complaint has not been resolved by the formal complaints process
After my complaint is upheld, what then?
The first step, should you wish to pursue a claim, is to prove what happened to you.
Your solicitor may arrange for you to see an independent medical expert to assess the medical facts. You would not be expected to pay for this as it would be covered by a 'No Win No Fee' agreement.
The solicitor will work with the medical experts to establish what level of compensation will be required to cover the pain and suffering experienced, the cost of care and treatment required and any other losses including loss of earnings.
Solicitors will often assist in dealing with the Department of Work and Pensions (DWP) as financial support or benefits may be available.
What about approaching the NHS Litigation Authority (NHSLA)?
Potential claimants not wishing to pursue a legal claim can approach an independent mediation service known as NHS Resolution (formerly NHS Litigation Authority). This service announced in 2014 can offer an alternative route to legal action. Approaching NHS Resolution does not prevent you from subsequently taking legal action if you are unhappy with the outcome.
I have a strong claim - why won't a solicitor take it on?
It may be possible to start a claim for compensation on behalf of a child or other person where the injured party is not able to make the claim themselves. For legal purposes, these claimants are referred to as 'protected parties'.
The person responsible for making a claim for a child or protected party is known as a 'litigation friend'. This individual will be responsible for communicating with the solicitors and making decisions.
In most cases, the time limit for starting a personal injury claim is three years from the date of an accident or cause of an illness or injury.
Rather than starting from the date of an accident or injury, medical and clinical negligence time limits generally start from the date that the injured person becomes aware of their injury. In cases of medical negligence, a patient may not be aware for some time after and act of negligence occurs that they have been injured. Months and even years can passed before symptoms appear.
The law allows for claims for clinical negligence to be made up to a three-year time limit from the 'date of knowledge' when the claimant first learned of their injury. It is recommended that a claim be started early, as the complexities of many medical negligence cases can mean that a claim will benefit from additional time. This includes more time to gather medical evidence and assess the extent of the injury, and more time for the claimant's solicitor to negotiate more compensation.
Quittance's panel of 'No Win No Fee' solicitors are experts in the field of medical negligence. Your solicitor will handle your case from initial free consultation through to settlement. The solicitor will deal with the responsible hospital (NHS or private), GP or health trust.
Once all of the evidence has been collated, the solicitor will build the most robust case possible and pursue the maximum compensation settlement available.
Quittance's solicitors have significant experience and expertise in all areas of medical negligence including:
- Misdiagnosis - such as misdiagnosed cancer - especially colon, bowel and prostate. Other conditions such as IBS are also commonly misdiagnosed.
- Accident and Emergency (A&E) - common A&E errors include not checking medical history and examination errors - both of which can lead to a failure to admit the patient. Investigation failures following scans, blood tests and X-rays can also lead to claims.
- Birth injuries to children - Cerebral Palsy resulting from a failure to perform or note changes in cardiotocography (TCG), errors or delays in using items meant to assist in childbirth such as forceps or ventouse and delays in performing caesarean sections can occur. Fractures to legs, arms, shoulders, collarbone and the skull as well as brain injuries, cuts and scars from incorrectly used medical implements are also seen on occasion.
- Birth injuries to mothers - Badly managed pre-eclampsia, caesarean and anaesthesia complications and internal organs and 'Never Events' are reasonably common. Other problems can include third and fourth degree perineal tears, fissures, mistakes made in suturing and wrongly performed episiotomies.
- Prescription error - reactions, allergies, mixed medication prescriptions and prescription mix ups are often at the centre of errors made
- Hospital neglect - dehydrated or malnourished patients and hospital contracted infections such as MRSA are not uncommon
- Cosmetic and plastic surgery - breast enhancement or reduction, rhinoplasty ('nose jobs'), liposuction, fat transfer operations, tummy tucks, face and neck lifts, brow lifts, ear corrections, eyelid surgery and botox injections are growing in popularity and with this the number of negligence claims are increasing
- Blood clots - untreated blood clots that lead to heart attacks, strokes, pulmonary embolisms, deep vein thrombosis (DVT) and kidney problems can occur
- GP negligence - failures to refer patients for further tests (in particular cancer diagnosis) and incorrect prescriptions are the most common claims
- Bed or pressure sores - infected bed, or pressure sores ('pressure ulcers') on the feet, ankles, heels, back, shoulders or buttocks often lead to negligence claims, particularly when hospitals and residential homes fail to use the Waterlow System,
- Surgical errors - negligence during surgery involving surgeons, anaesthetists or other medical professional are common.
- Orthopaedic negligence - failures to recommend necessary surgery following a fracture or broken bone or a misinterpretation of an X-ray leading to an incorrect treatment are common. Claims relating to hip or knee replacements, surgery to the arms and hands or surgery to the legs and feet are also common.
Probably the most common question asked by potential claimants is "How much compensation will I receive for my medical negligence claim?". Given the wide ranging circumstances and severity of injuries sustained, this is a particularly difficult question to answer.
Awards for the claimants 'general damages' (pain, suffering and loss of amenity) are set out by the Judicial College (formerly known as the Judicial Studies Board) in their guidelines for personal injury awards.
These awards are calculated in relation to the nature and severity of an injury and are set out in the form of minimum and maximum amounts for a given injury.
Although the JSB Guidelines are not ‘law' per se, their use is widely adopted in Court and almost all insurers and lawyers refer to these guidelines when assessing compensation for a medical negligence.
In addition, it is usually possible to claim 'special damages' to compensate the claimant for the cost of medical treatment, loss of earnings and any other expenses incurred.
Getting a free consultation from a solicitor or obtaining a free Compensation Claim Report will provide a more detailed assessment of what your claim could be worth.
Generally speaking the length of time needed to reach a settlement is linked to the complexity of the case. On average claims are concluded in 12 to 18 months but straightforward cases may settle sooner and more complex cases can take significantly longer.
Every case is different making it hard to predict how long it will take to reach a settlement. Sometimes it actually benefits the claimant to negotiate for longer as this can deliver a more substantial settlement.
Answering a few questions on a Compensation Claim Report can provide a better idea of how long your clinical negligence case might take.
A No Win, No Fee agreement, or Conditional Fee Agreement (CFA), is the basis of the majority of personal injury claims.
The CFA lays out the contract between the personal injury solicitor and you. The agreement details the work provided by your lawyer and the success fee that will be taken from your total compensation when your claim is successful.
There are absolutely no hidden fees working with a Quittance injury-specialist solicitor. You will be able to focus on your rest and recovery, knowing that you will never be out of pocket.
The nationwide panel of QLS solicitors handle all types of clinical negligence claims, from short-term injury cases to serious, long-term injury. Our solicitors are selected for their level of experience and their winning track record.