Making a medical negligence claim
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I have been working as a solicitor in the clinical negligence team here at BLClaims Solicitors for almost three years, and during that time I have been instructed by many new clients - here are the frequently asked questions on bringing a medical negligence claim.
As you might expect, all of the clients I have acted for have been very different- be that in terms of their age, their geographical location, the type and/or the complexity of the injury that they have suffered, or even just how friendly they are!
Despite these differences however, there are generally always some similarities amongst most of our clients, the main thing being that they are all in the same situation, i.e. about to embark on pursuing a claim. As solicitors specialising in clinical negligence we spend all day every day dealing with clinical negligence claims, and so we know how the procedure works.We also know that there won't be (or at least there shouldn't be!) any nasty surprises, but we always bear in mind that most clients will never have made a claim before, and that to them, at the outset, it may seem like a daunting process. It struck me recently that there are a number of concerns that I regularly discuss with clients at the start of a claim.
Here is a list of the questions that I am most often asked, along with some answers which, if you are considering pursuing a claim, you may find useful:
1) How long do I have to bring a claim?
There is a three year limitation period which applies to clinical negligence claims, which starts running from the date of the negligent act or from the date of knowledge of the negligent act, whichever is later. If the claim has not been settled within that three year period then it is only possible to continue to pursue the claim if court proceedings have been issued. It can take a long time to investigate the merits of a claim, so it is always generally best to start work on a claim as early as possible. If you are thinking about pursuing a claim then it is very important to keep this three year period in mind.
2) Will I have to go to court?
Out of all the clinical negligence cases we take on, of which there are many, only a very small handful go all the way to trial. In percentage terms, I would estimate this figure to be less than 5% of all our claims. It is therefore very unlikely that you will have to go to court. Trials are expensive and stressful for all parties involved and are generally best avoided. Defendants are aware of this as much as we are, and most cases settle long before trial. It may at some stage however be necessary to issue court proceedings. This is generally considered if the limitation period in your claim is about to expire or if the person or body you are bringing the claim against denies having been negligent. Issuing court proceedings does not necessarily mean that the claim will go to trial.
3) How much money will I get?
Damages are awarded in respect of any out of pocket expenses or financial losses, and also in respect of any injuries sustained. It is quite difficult to place a financial value on physical injuries, but we do this by considering published guidelines for various types of injury and by looking at the awards of damages made in previously decided cases where claimants have suffered similar injuries. Very often we need to obtain an independent medical opinion as to the extent of any injury suffered and its prognosis; only once we know the extent of the injury can we start to think about its value. Without this evidence it can therefore be difficult to advise new clients about the value of their claim at the outset.
4) How long will it take?
Clinical negligence claims can take a long time to conclude. As a rough guide, a very straightforward claim where liability is admitted would generally take at least six months . More complex claims where liability is disputed can take several years to conclude. It can take a long time to obtain copies of relevant medical records and we may also need to instruct an independent medical expert to assess whether the care that you received fell below an acceptable standard, and whether that caused you to suffer additional injuries to those you would have had anyway. We have to make sure that claims are properly investigated and this takes time.
5) Will I lose my house?
The short answer to this is no! Clients are always concerned about being presented with a huge bill at the end of legal proceedings. We understand that no one wants to find themselves in this situation, and we will make sure that we explore the various funding options with you and that you understand them. The available funding options include legal expenses insurance (which you may have as part of another insurance policy), public funding, paying privately and 'no win no fee' agreements. It is worth noting however that the law on 'no win no fee' agreements has recently changed. Whilst the name of the arrangement is still correct (if your claim is not successful, you don't pay anything), the situation has changed slightly for successful claimants. As of April 2013, if you win your case you may now be liable to pay out in fees up to 25% of any damages you recover. This does mean however that you will keep at least 75% of any damages awarded (and it should certainly mean that your house is not at risk as a result of making a clinical negligence claim!).
6) Should I change my doctor?
Clients are often concerned about making a claim where their treatment is still ongoing under the same doctors. Whilst some people don't have a problem with this, others may feel uncomfortable, or worry that their treatment may be prejudiced as a result of their claim. The first thing to remember is that any claim made as a result of NHS hospital treatment will be pursued against the hospital trust, not the doctors individually. Secondly, even if a claim is ongoing medical professionals have a duty to provide treatment of an appropriate standard. There is therefore no need to change doctors because you wish to pursue a claim. It is of course a matter of personal preference; some clients lose confidence in the doctors whose treatment is to form the subject of their claim, and so prefer to change for that reason.
7) Will I get an apology?
Many clients tell us that their reason for pursuing a claim is not to recover money, but to make sure the same thing doesn't happen to someone else, or because they want an apology for what has happened. Whilst making a claim can bring to people's attention an incident that should not in the future be repeated, and can lead to changes in policy being made, it does not guarantee that anyone will say sorry for what has happened. The only thing that is sure to result from a successful claim is financial compensation, but very often this is without any admissions of liability being made. This can be frustrating, and it is something that clients need to be aware of from the outset.
8) What will making a claim involve?
If we consider that you may have grounds for making a claim, letting us investigate further will initially require very little time on your behalf. We start by obtaining copies of your medical records, and our in-house medical team will then review them in detail. At that stage we generally write to the defendant (the person or hospital trust being sued) with details of your claim, sometimes with the help of an independent medical expert. The defendant will then investigate the matter before providing a letter in which they confirm if liability is admitted or denied. If liability is admitted, we can then quantify the claim and proceed to settlement. If liability is denied, investigations will carry on and it may become necessary to issue court proceedings.
9) Should I bother making a claim?
In short, yes! If you are concerned enough about treatment that you or someone else received to be reading this, then we would be happy to advise you further. If you would like any further information about pursuing a claim then please do not hesitate to contact us.
BL Claims Solicitors are here to help
If you would like to talk to someone and discuss a potential claim please call us on 0344 620 6600 anytime between 8am and 6pm Monday to Friday, or if you would prefer you can email us at email@example.com