Lack of Consent Negligence Compensation Claims
If your life, or the life of a loved one, has been affected by medical negligence, we can help.
If your injuries were caused by the negligence of a doctor, nurse, midwife or other medical professional, you may be entitled to claim compensation.
Claiming injury compensation with a solicitor
You can make a compensation claim with the help and support of a specialist clinical negligence solicitor.
Your solicitor will ask you about what happened, and they will collect evidence to prove the negligence happened. Your solicitor will also work out how much money you can claim, based on your injuries, lost earnings and other expenses.
We can help you make a medical negligence claim on a No Win No Fee basis.
In this article
Patients who are scheduled to have a pre-planned operation will be asked to sign a form consenting to the procedure.
Consent is not simply a matter of saying 'yes' to the operation. In order to make a decision about whether to go ahead, the patient must be advised of the nature of the procedure together with the possible risks.
Giving consent in full knowledge of the facts is called "informed consent."
If you gave 'uninformed' consent to a medical procedure without being informed of the risks, you may be able to bring a clinical negligence compensation claim against the relevant hospital or health authority..
Do I have an injury claim?
Medical negligence claims differ from personal injury claims as the following will need to be established:
- there was a breach of duty ("negligence" or "fault"); and
- the breach of duty was the cause of your injury, damage or loss ("causation" or "avoidable harm").
Breach of Duty
A breach of duty means that the standard of care you received was below the standard that could reasonably be expected of a competent healthcare professional.
To establish causation, it will need to be demonstrated that the injury you suffered resulted from the negligent care rather than the underlying condition.
Get an impartial opinion
To get impartial advice on whether you have a claim, speak to an injury claim expert on 0800 376 1001.
A brief phone consultation will tell you exactly where you stand. There is no obligation to start a claim.
Is compensation always payable?
If an error occurred during treatment and the patient was harmed as a result, this may be referred to as an "undesirable outcome".
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.
How long do I have to start a claim?
If your injury is apparent immediately after medical treatment, you will have 3 years to start a claim.
It may be that the negligent procedure happened more than 3 years ago, but your injury was only diagnosed recently, within the last 3 years. If so, you may still be able to make a claim.
What if your injury was diagnosed months or years after treatment?
You may not be immediately aware of your injury. In some cases, months and even years can pass before symptoms appear.
The law allows you to make a medical negligence claim up to three years after the 'date of knowledge' (when you first learned of the injury).
It is recommended that you start a claim as soon as possible, as medical negligence cases can be complex. Starting your claim sooner will give your solicitor more time to gather medical evidence, assess the extent of your injury and to negotiate interim payments and your final compensation amount.
The amount of money you could claim for your injury will depend on:
- the seriousness of your injury, and
- any financial losses or costs you have incurred.
At the start of your claim, your solicitor will consider the many ways your injuries have affected your life. Your solicitor will take these considerations into account to calculate the correct compensation award.
This calculation will factor in 'general damages' and 'special damages'.
General damages are awarded for pain, suffering and loss of amenity (PSLA).
Awards for general damages are set by the Judicial College and published in their guidelines for personal injury awards.
Special damages are for financial losses and expenses you have incurred as a result of the accident.
What can I claim for after an injury? (see list)
Examples of special damages (losses you can claim for) include:
- Lost earnings (including future earnings)
- Medical treatment costs
- Travel costs
- Costs of care
- Costs of adapting your home or car
What is the average injury compensation for an injury claim?
The Judicial College injury tables give a approximate idea of the ranges awarded for different injuries.
However, the money you would receive following an injury will depend entirely on your specific circumstances.
Your injury compensation will be calculated based on the unique impact your injuries have had on your life and your ability to work, and on the actual financial losses you have incurred as a result of your injuries.
Will I have to pay tax on my lack of consent negligence compensation?
If you receive financial compensation following a lack of consent negligence injury, specific legislation ensures that you do not have to pay tax on it. This is the case no matter whether the compensation is received as a lump sum or as staggered payments.
Calculate my injury compensation
Calculating how much compensation you can claim for an injury can be complicated.
Our injury compensation calculator tells you if you may have a claim, how much compensation you could claim, and what you can claim for.
Find out what your injury claim could be worth now:
How long does a medical negligence claim take?
The length of time needed to secure compensation for lack of consent medical negligence can vary significantly.
A straightforward liability accepted medical negligence claim could be settled in 12 to 24 months. However, if liability is denied it could take 2 to 5 years. Usually, a medical negligence claim should take 12 to 36 months. To read more about how long your claim could take, see: How long will my claim take?
How else can a solicitor help me?
Your solicitor will handle your injury claim from the initial FREE case evaluation, through to the financial settlement.
Your solicitor will work with other specialists to provide caring and sensitive support and help you with:
- Financial support: interim payments while you are unable to work.
- Advice: on personal injury trusts, tax and welfare benefits.
- Coordination: with rehabilitation providers and therapists.
- Access: to treatment and therapies not always available on the NHS.
What is consent to a medical procedure?
Informed consent occurs when a person agrees to receive an operation after receiving all the facts. This means that a doctor must tell the patient about:
- The procedure
- The frequent risks
- Rarer risks, if they are serious when they do occur
- Any risks the patient specifically asks about
- Alternative treatment or therapy, including the option to do nothing.
To clarify, the doctor does not have to mention all the risks associated with a procedure. The patient is entitled to receive the information that a reasonable person in the patient's position would wish to know in order to make an informed decision. The doctor generally would not be liable if they failed to mention unusual or trivial risks.
Why do I have to give consent?
Carrying out an non-permitted surgery is recognised as a type of criminal injury. Signing a consent form protects the surgeon from criminal liability, as well as giving the patient more control over their medical care.
When might there be a lack of consent?
Lack of consent medical negligence claims typically arise when there is a complication during surgery and:
- The patient has not consented to the surgery unless the treatment was given in an emergency to save the person's life
- The consent form failed to specify the particular complication as a reasonably foreseeable risk of the surgery
- There was a higher risk of that complication occurring than was specified on the consent form. For example, the doctor may have told the patient that there was only a 0.5 percent chance of bleeding after the surgery, when in fact the risk was 5 percent
- The patient received a different procedure to the one they consented to. For example, the patient received invasive surgery when they consented only to keyhole surgery.
Proving a lack of consent medical negligence claim
Allowing a pre-planned operation to go ahead without a signed consent form would be a gross oversight on the part of the medical team. The patient almost always will have a lack of consent medical negligence claim if they did not consent at all to an operation and injury arose as a result.
Where the patient has given some form of consent, establishing liability can be complicated. To bring a successful claim, the injury lawyer must show that:
- The surgeon did not explain the risks and benefits of the proposed treatment and of alternative treatments
- With full information, the patient would not have consented to the treatment
- The treatment caused the patient's injuries.
For major surgery, it is usual for the consent form to list the risks that have been discussed with the patient. However, this is not mandatory. Where liability is not admitted, the injury lawyer will gather evidence such as medical records and witness statements to show that the patient was not told about the complication that occurred.
Will I have to go to court?
Highly unlikely. Solicitors settle the vast majority of claims out of court.
Less than 5% of personal injury claims go to court. Generally, only very complex cases, or those where liability cannot be resolved, end up in court.
Cases that do ultimately go to court are decided by a judge or magistrate, not a jury.
Even if the claim does go to court, it is very unlikely you will have to attend.
No win, no fee, no risk
No win, no fee takes the risk out of making an injury claim. If you don't win any compensation, you won't have to pay your solicitor any legal fees.
No win, no fee guarantee
If you have been injured and it was not your fault, we can help you make a no win, no fee injury compensation claim.
What do I pay if I win my injury claim?
Your injury solicitor will receive a success fee which is deducted from your compensation, after your compensation is awarded. The solicitor's success fee can be up to 25%. You and your solicitor can agree the success fee before you start your claim.
What do I pay if I do not win my injury claim?
If your injury claim is not successful then you will not have to pay any fees. Your solicitor may take out insurance to ensure there will be nothing to pay.
Is there a penalty if I withdraw?
Under a No Win, No Fee Agreement (CFA), fees may apply if a claimant refuses to cooperate, or abandons their claim after the legal work has started, or if the claim is fraudulent.
How we can help you
Your solicitor will fight for the best possible compensation settlement for you, and the highly-experienced panel of solicitors have an excellent track record of winning medical negligence claims.
If you have any questions, or would like to start a No Win No Fee claim, we are open:
- 8am to 9pm weekdays
- 9am to 6pm on Saturday
- 9.30am to 5pm on Sunday
Call us for FREE advice on 0800 376 1001, or arrange a call back from a friendly, legally-trained advisor:
- Find out
if you can claim
- No obligation
to start a claim
Can I claim for someone else?
Yes. In certain circumstances, it is possible to claim compensation on behalf of another person in the capacity of a 'litigation friend'.
If an injured person is either too young or vulnerable, too injured or otherwise unable to claim on their own behalf, their litigation friend can handle the claim process on behalf of the injured person.
The litigation friend will be responsible for communicating with the solicitors, and for making decisions in respect of the claim.
Will I have to visit a solicitor's office to start a claim?
No. You will not need visit a solicitor's office. Personal injury claims are handled by email, post and phone.
Should you need to have a medical, this will be arranged at a medical centre near you or at your GP's surgery.
I need the money now - what are my options?
If you are unable to work and have bills to pay, you may be able to claim an interim compensation payment.
An interim payment is an advance on your compensation payment. Any amount you receive in interim payments would be deducted from your final compensation payment.
Howard Willis, Personal injury solicitor
About the author
Howard qualified as a solicitor in 1984 and has specialised in personal injury for over 25 years. He is a member of the Association of Personal Injury Lawyers (APIL) and is a recognised Law Society Personal Injury Panel expert.