Pursuing claims for damages caused by negligent treatment may seem like a very complex and stressful engagement. No one ever sets out to become a victim of negligence or go through a difficult time as a result of the negligent actions of another.
This explains why many clients we have worked with are unclear on how to claim negligence or how to start a clinical negligence claim.
We have taken our time to put together this practical guide that will help you understand the medical negligence claims process. Whether you are looking at claiming compensation for clinical negligence in the NHS or simply looking to get an understanding of what you went through and why, you will find this guide helpful.
Please feel free to reach out to us in any case if you believe you have suffered injury following medical treatment. Our processes are quite straightforward and we will do what we can to make things as easy as possible for you.
Making a claim for clinical negligence may be difficult to pursue, no doubt, but with the best hands handling your case, you stand a chance of securing worthy compensation for all your suffering.
You can speak to us today or fill out our free claims assessment form to speak with an expert medical negligence solicitor.
What Constitutes Damages in Clinical Negligence?
When it comes to cases of negligence, it is important to ascertain the actual damage caused by the negligent actions of the medical practitioner or hospital involved.
This is because it is likely that the claimant has underlying health issues which may have contributed to the harm suffered. It can be difficult to prove a claim if you fail to prove causation.
Generally compensation for damages in medical negligence are categorized into two, namely;
- General damages – Compensation for physical injury, pain and suffering, psychological injury and “loss of amenity”
- Special damages – compensation for any past and future financial losses for which causation (negligence) has been established.
Recovering Damages in clinical negligence
Before damages can be awarded in a medical negligence case, there are elements a patient must prove.
As a victim you must establish that:
- The negligent action of his/her medical professional or hospital resulted in such damages. That is, there was a breach of duty on the part of the professional, hospital or clinic involved.
- The breach of duty resulted in injury, harm, or damage. This is known as causation in medical negligence claims.
- That the injury has impacted their quality of life greatly and brought about some incurred losses (including foreseeable losses)
Although the above stated may be difficult to prove in clinical negligence ( for example, the hospital or medical professional may affirm that the treatment given was not negligent), once you can establish that they are more likely than not, you stand a chance.
How Are Damages Calculated When You Make A Claim?
Damages are generally calculated based on how much loss the victim has suffered. It may include the following;
- Pain and suffering caused by the injuries, harm or worsened medical condition.
- Financial losses incurred as a result of the medical negligence or during the time of seeking redress. For example, traveling expenses for medical appointments, prescription charges and cost of engaging a specialist or a private medical practitioner.
- Loss of earnings as a result of injury suffered. For example, when a victim is mandated to take time off work due to existing conditions or time needed for corrective treatment or recuperation.
- Any anticipated future loss, which may include loss of future earnings based on prognosis.
- Impact of injuries on the quality of life of a victim. Damages can reflect the disadvantages you may likely face (for example in the case of a disability) after recovery or when seeking future employment.
- Loved ones of victims who have lost their lives as a result of clinical negligence can claim negligence damages for bereavement which may cover funeral service and all other associated losses of dependents.
Once we have evaluated your claim, our solicitors will give you the likely value of your claim. It helps that you provide us with every bit of information regarding all your losses and injury as that is the only way we can make a near accurate estimation of your payout using our medical negligence calculator.
However, as your case progresses, following any changes, we can also advise you on how that may affect the value of your claim. When the time is right, we will make a compensation offer after the medical report and all evidence has been presented to the defendant. The offer will reflect what we believe is the worthiest compensation to cover for your suffering and damages incurred.
Making Your Claim
How you start your claim is very vital. In this section we will simplify the stages of a clinical negligence claim, classified under two broad headings:
What you’d need to do
There are steps you will need to take to ensure that your case is positioned for the best possible outcome.
- Contact us and you will be assigned to one of our expert medical negligence solicitors, who will look into your case. Our solicitor will listen to and carry out a critical evaluation of negligence – that is whether or not negligence can be established. You will then be advised on the next steps to take.
- Keep all evidence relevant to your claim as you would be required to present them to your solicitor to enable them build a strong case for you.
Evidence Required Include:
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If your medical professional or hospital has refused to let you access relevant evidence to prove how much damage you have suffered (for example your medical records); we can help you apply to a court to get an order requiring that such information be disclosed to you. We would only do this once we are convinced there are sufficient grounds.
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What we will do for you
Once we have obtained the details of your case, including the evidence you have provided, we will take the necessary procedural steps to ensure that we establish solid grounds for your claim.
We will prepare a written statement of your evidence, explicitly stating your current condition, the circumstances of your treatment, and the expected value of clinical negligence compensation claims. We will ensure that statement is as comprehensive as it can be, and will present this as a “Letter of claim” to the defendant on your behalf.
Following the submission of the Letter of claim, the defendant (doctor, hospital or NHS in the case of an NHS claim) would acknowledge receipt and will be given ample time to carry out their own investigation. Thereafter, liability is either admitted or denied. If the defendant admits to the wrongdoing, negotiations are arranged between both parties to agree on the right settlement amount for your damages.
If liability is denied even with the evidence presented, you case may go all the way to a trial. However, you need not worry about this as this rarely happens.
Our solicitors are very transparent in their dealings, they keep you in the loop of the progress of your case. They will also make sure you receive the right answers to any questions you may have concerning your claims process.
Take note of this pre action protocol for clinical negligence;
This protocol gives a provision for a defendant to be given four months to make an investigation and respond to the Letter of Claim issued before proceedings can be served. Where this is not possible, the claimant’s solicitor will be given a notice of an intension to issue proceedings at a reasonable time as much as is practicable.
Also note that the pre action protocol does not override the statutory time limits for starting court proceedings. For instance, if the claim is issued after the limitation time period, the defendant can use that as a defence to the claim.
On the other hand, if proceedings have been started so that they are not statute barred even before both parties are able to follow the procedures in this protocol, they can both apply for a stay of the proceeding in court so that they can follow the protocol procedures. This law on clinical negligence claims has to be followed to ensure claims are properly resolved and in time.
How long does one have to make a claim?
When seeking compensation for medical negligence damages, it is important that you keep in mind the medical negligence claims time limits as this goes a long way to determine your eligibility status to receive compensation.
Generally, people who have been victims of clinical negligence have three years from the date of knowledge of their injury to bring a claim. Although this applies in most negligence cases, whether it is doctor negligence, gp negligence or hospital infection claims; there are a few exceptions.
Children: Under any law, children are not allowed to bring claims on their own. Cases involving children, claims can be brought anytime on their behalf until they are 18 years and are able to pursue these claims on their own. From this time, they have until their 21st birthday to make a claim.
People who lack the mental capacity: Sometimes the consequences of negligence can leave victims with temporary or permanent disabilities like a loss of mental capacity. When this happens, the victim is given ample time ( until they regain their mental capacity) to bring a claim. In a case of permanent disability, there is no time limit at all.
Our solicitors are experts in all kinds of medical negligence claims. We have specialist Cauda Equina solicitors, hospital negligence solicitors and NHS negligence solicitors who are ever ready to assist you with your claims.
How Long Does A Claim Take To Be Resolved?
Well, there are no hard and fast rules. Resolving clinical negligence claims can be tricky. Irrespective of the nature of the event, settlement payouts for medical negligence may take a while before they are awarded.
One of the core factors that delays the resolution of compensation claims is the time it takes to evaluate the claim and also establish that indeed the medical professional was negligent. For example, obtaining all expert evidence necessary to support your claim. Further, in a case where an independent medical expert will need to be consulted to establish the extent of your injury, and whether or not they were caused by negligence.
Furthermore, when claims go to court, they will take a longer time to resolve. However, most negligence claims in the UK reach a resolve or out-of-court settlement within 12-18 months or even less (in less complex cases). Conversely, in complex cases, claims could take longer time to settle”
Other times, claiming compensation for hospital negligence or, may be delayed owing to the length of time of establishing prognosis based on the severity of the injury. For example, how long recovery from the effect of your injuries will take, or whether you may be left with permanent symptoms following the injury.
A vast majority of claims are resolved without going to trial. Negotiations are made by both parties and a settlement value is agreed upon. This is also a key factor in the time it takes to resolve claims.
When we represent you, we do our best to see that your claims are resolved at the earliest time possible (and out of court). While doing this however, our expert negligence solicitors ensure that:
This is why we advise clients who have been victims of negligent treatment to bring their claims as quickly as possible to ensure that they are resolved promptly when their evidence is strongest or yet to diminish in value. |
Are There Benefits I Can Claim?
In cases where the malpractice has resulted in damages that has left a victim incapacitated or incapable of doing work, welfare benefits such as incapacity benefit, disability working allowance or severe disability allowance can be claimed. Do not hesitate to contact us to get our expert advice if you think you are eligible for this.
Does personal injury compensation affect benefits?
One of the most mind-boggling questions for most victims of clinical malpractice who are recipients of one form of benefit or the other is this; “does compensation affect benefits?”
Where you have been receiving welfare benefits from the Local Authorities or the Department for Work & Pensions, if you receive a huge sum of compensation for your personal injury or there is a noticeable substantial periodical payments; you will cease to be eligible for such welfare. Additionally, if your spouse is in receipt of such benefits ( for example, means tested benefits from the Local Authorities), they might also be affected by the compensation you have received for your negligence damages or clinical negligence claims.
In clearer terms, if you receive compensation into your savings account directly, for whatever negligence damages claim, the medical negligence compensation received is counted as capital. Thereby reducing, or ultimately having you forfeit the benefits you are entitled to. For example, you may have to use your compensation for expenses that were initially covered by state support e.g renting, water, heating etc. The only time your entitlement for benefits are reinstated is when your savings drops below the capital limit.
This becomes unfair for victims whose compensation is meant to cover specific costs e.g cost of rehabilitation or cost of seeking additional medical care.
Furthermore, in other personal injury cases, when compensation claims for medical negligence are paid, the insurance company responsible for settlements may have to pay these benefits back to the government.
In these circumstances, the Compensation Recovery Unit of the Department of Works and Pensions, may deduct all the benefits you have received up to the date on which your claim is concluded.
How can you prevent your compensation from replacing your benefits?
It is however possible for victims to set up a Compensation Protection Trust or Personal Injury Trust that affords them the opportunity to indefinitely have their compensation, whilst retaining their entitlement of benefits.
You can use a trust so long as:
- The trust has at least two trustees
- You are one of the beneficiaries of the trust
- The trust fund must be held in a separate bank account
- The money in the trust must come from your personal injury compensation settlements only
Once your compensation has been paid to the trust, the trustees make payments to you intermittently. But the payments that come from the trust must be below savings limits so you can still retain your entitlement to full benefits.
If you need more information regarding how your compensation may affect your benefits, please call in to speak to one of our expert medical negligence solicitors and we will be happy to provide further information.
Reach Out To Our Lawyers
Our clinical negligence solicitors are experts in handling cases of clinical malpractice damages. You can reach out to us in our Liverpool office, our solicitors in Manchester, London and of course all across England. You can get in touch with us today by completing our quick Free Claim Assessment form or call us on 0800 644 4240.
If you’ve been put off by the thought of having to go to court, it will interest you to know that the panel of solicitors we work with mostly resolve cases of clinical negligence damages out of court.
Most importantly, if you are wondering the cost of our legal fees, you have absolutely nothing to worry about. Our solicitors operate on a negligence claims No Win No Fee arrangement where there is no cost to you as our client regardless of the outcome of your claims. What we are saying is simply that in the event of an unsuccessful claim, you owe us nothing.
The only time you will be required to pay us a fee is when you have been your negligence compensation. Here, we negotiate a success fee (usually a percentage of your total compensation award).
We encourage you to act quickly to present your case to our negligence claims lawyers. You also will not have to pay anything for your case evaluation if you fill our free no obligation claims assessment form this minute.
We look forward to helping you get that compensation you deserve!
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