Frequently asked questions about claiming compensation
Who do I sue for medical negligence?
If the treatment which you received was provided in an NHS hospital, you will sue the NHS Trust responsible for that hospital rather than the individual clinician involved. If your treatment was provided by a GP or a Doctor at a private hospital then you will sue the individual GP or Doctor rather than the GP practice or private hospital. All GPs and private Doctors have insurance to cover claims against them. If your negligence claim is against a dentist then you will sue the individual dentist rather than the dental surgery. There are exceptions to these general rules, however, and your solicitor will need to carefully consider who should be pursued.
How do I prove my medical claim?
You will need evidence to prove your medical negligence claim. The most important evidence will be expert reports from medical experts.
Your solicitor will recommend that expert reports are obtained from independent medical experts who have both a specialist knowledge of the area relevant to your treatment as well as experience of the litigation process. It is critical that the correct medical expert is used, since their evidence will be crucial to the success of your claim. Without this evidence, you will be unable to pursue your claim.
Is there a time limit for bringing a compensation claim?
It is vitally important to seek legal advice as soon as possible after the medical treatment or as soon as you become aware that you have suffered an injury as a result of the medical treatment. This is because all medical negligence claims must be brought within 3 years of the negligent treatment. This means that Court proceedings must be commenced by issuing a claim form at Court within 3 years.
Where you are not aware that you have suffered an injury as a result of the treatment until later, the 3 years will run from the date that you became aware of your injury.
These time limits are provided by statute law and are rigidly applied by the Courts. It is very rare indeed for a Court to be persuaded to allow a claim to be brought after the 3 year period.
If a claim is brought on behalf of a child, they will have three years from the age of majority within which to start Court proceedings (i.e. until they are age 21).
Will I have to go to Court?
Many people are put off from making a claim by the thought of having to go to Court. By going to Court, we mean attending a trial where a judge decides the outcome of the case. The vast majority of medical negligence cases are resolved without going to Court, even where Court proceedings have been commenced. The Court strongly encourages early settlement of cases and there are plenty of opportunities to negotiate settlement of your medical claim.
In the very unlikely scenario that your case goes to trial, your solicitor will assist you every step of the way and ensure you have the help and support you need.
How can I fund my compensation claim?
This is understandably a question which will be at the forefront of your mind. Having suffered an illness or injury which may well have affected your income, you are unlikely to be in a position to pay for the legal costs involved in investigating and pursuing a claim. Certainly, the costs involved in medical negligence claims can be substantial. There are options open, including “no win, no fee” to you which will enable you to have your case investigated and pursued at no cost to you. You can find more information about funding your claim here.
Can I apply for financial assistance whilst I’m unable to work?
If you are injured or unwell as a result of medical negligence, being unable to return to work can create financial problems. To ease the financial pressure and allow you to concentrate on your rehabilitation, we can request an interim payment on your behalf from the Defendant insurer. We can also help you understand which state benefits you could claim.
How will my treatment and care needs be assessed?
Firstly, a medical professional will prepare an immediate needs assessment report which will set out your treatment needs and priorities. Then, if appropriate, we will instruct a case manager who will be responsible for coordinating your treatment and care. In most cases, these costs will be covered by the Defendant insurer.
What does the claims process involve? How long will it take?
Clinical negligence claims can be complex and can take a long time to reach conclusion.
In the majority of cases, the following steps will be taken in order to investigate a claim;
- Full medical records are obtained from before and after the alleged negligence including GP records.
- An independent medical expert is instructed to report on breach of duty.
- An independent medical expert is instructed to report on causation (this can sometimes be the same expert as the expert on breach of duty).
- If the medical reports support a claim for both liability and causation, we will consider the value of your claim, and a Letter of Claim will be sent to the Defendant setting out the allegations of negligence.
- The Defendant has four months under the Court rules to investigate our allegations and respond, indicating whether liability is admitted or denied.
- Whilst a response is awaited, we will begin to assess the value of your claim. A medical report addressing your condition and future prognosis will be obtained. This will either be a relatively simple process or, depending on the nature, severity and complexity of your injury, a more involved process involving numerous different experts and documents.
- If liability is admitted, and it is possible to place a value on your claim at an early stage, negotiations for settlement are likely to take place.
- If liability is denied or if there is a long process required to value your claim or a dispute about the value of your claim, court proceedings will be commenced. This does not necessarily mean your case will go to trial. In fact, very few clinical negligence cases go all the way to a trial.
To learn more about making a medical negligence compensation claim, download our medical negligence fact sheet.
- Medical negligence solicitors
- GP negligence compensation claims
- Surgical negligence compensation claims
Contact a medical negligence solicitor
To talk to us about claiming compensation for medical negligence, call us now on 0800 316 8892 or contact us online.