What is a Clinical Negligence Claim?
Medical treatment provided in the UK is usually to a very high standard. However, occasionally things can go wrong.
Our team at Jackson Lees are one of the leading clinical negligence practices in the North West of England and can assist clients from all over the UK.
It is a claim for damages (compensation), for personal injuries and unnecessary suffering following negligence by medical/clinical professionals.
As well as gaining compensation, by seeking solicitors’ advice to investigate a potential claim you can also:
- Find out what really happened;
- Help prevent the same thing from happening to someone else;
- Obtain an apology;
- Make someone accountable.
However, it is important to remember that the ultimate objective of a clinical negligence action is to recover financial compensation, which should try to put you in back in the same position had the negligence not occurred.
What do I need to do to prove negligence?
In order for a clinical negligence claim to be successful, you must be able to show that ALL of the following 3 elements occurred:
- Breach of Duty of Care
A doctor or health professional has a duty to treat you to a reasonable standard. To prove negligence, you must be able to show that no reasonably competent doctor would have acted in the way you have complained of.
- Causation
The Claimant must prove that the injury suffered (which can include worsening of a condition) was a direct result of the breach of the duty of care. This can often be the most difficult part of the case to prove.
- Damage
For you to be successful in a clinical negligence claim, you must prove that damage has occurred. It may be an injury caused by the negligent treatment or avoidable suffering due to a delay in diagnosis.
How would I go about investigating a claim for clinical negligence?
Once we have taken on your claim, we would investigate to see whether your case has reasonable prospects of success and to ensure that the likely value of the claim makes it worth pursuing.
On average, the investigation stage can take around 12 to 18 months (sometimes longer) and can include the following steps:
- Drafting a letter of complaint to the potential Defendant;
- Taking a Witness Statement from you;
- Obtaining your medical records;
- Having your records sorted and summarising them in a chronology;
- Finding and instructing appropriate medical experts to advise whether treatment has been substandard;
- Going through experts’ reports with you;
- Notifying the Defendant doctor/hospital/NHS Trust that a claim is being considered and sending them a letter with our allegations;
- Obtaining Counsel’s advice (from a specialist barrister) if appropriate.
Following this, we should be able to determine the strengths and weaknesses of your potential claim and advise you whether we believe the claim has reasonable prospects of success.
How would I fund a potential clinical negligence claim?
Clinical negligence claims are extremely expensive to run and our experience shows that on average it can cost around £30,000 - £50,000 just to investigate a potential claim.
There are a number of ways of funding a potential claim including:
- Legal Aid (Public Funding);
- Paying privately;
- Legal Expenses Insurance/Trade Union Funding;
- Conditional Fee Agreement (No-win, no fee).
Staff at Jackson Lees would go through each option with you, should you wish to pursue a claim and advise you of the best method of funding based on your specific situation.
What are the time limits for making a claim?
There is a rule in all personal injury claims that a claim must be issued in court within 3 years of either:
- the date of the accident or negligent act, or if later
- the date when the Claimant became aware or should have been aware of all the following 3 facts:
- the identity of the potential Defendant
- the Claimant has suffered a significant injury
- the injury is attributable to the act or omission of the Defendant
If proceedings are not started within this 3-year period, the Defendant may argue that your claim is statute-barred and cannot be pursued through the court. There are certain limited exceptions to this rule – the court has discretion to allow the claim in certain circumstances, but this is rare.
Where the Claimant is a minor, the 3-year period does not start until he/she reaches 18; thus proceedings must be issued in Court before his/her 21st birthday.
The rules relating to persons who do not have capacity to manage their own affairs are different and more complex. Where the claim relates to a person's death, the proceedings must usually be started no later than 3 years from the date of the death.
Next steps
If you are considering making a claim for clinical negligence and have any queries or concerns about how we can help with this, please do not hesitate to get in touch and we would be happy to discuss all options with you.