1. Clinical Negligence
Despite the fact that health care in this country is generally of a high standard occasionally things do go wrong This is particularly true nowadays when treatments can be highly technical and complex and many different health care professionals are involved in the care of each patient.
If the results of treatment are not as good as expected, or if complications have arisen, it does not automatically mean there has been a mistake or someone is to blame.
However, sometimes doctors and other health care workers do make mistakes that could have been avoided with more care, skill or organisation and this is called clinical (or medical) negligence. An operation may be incompetently performed, or a GP may fail to recognise the seriousness of symptoms or a baby may be damaged because of a mishandled birth.
2. Compensation
If you have been harmed, either physically or mentally, because of the negligence of a health care professional, you may be able to claim medical negligence compensation (damages).
The harm needs to be serious enough to make it worth paying the costs of making a claim. In most case it is not worth pursuing legal action if the injury is fairly minor or if a rapid recovery is expected.
In cases such as these the cost of making a claim could be greater than the compensation. However, if there has been an admission of fault it may be worth pursuing a low value case. We can advise you on this.
3. Legal Action
To make a successful claim for compensation you have to prove 2 things:
- that the standard of care you received fell below that of a reasonably competent health care professional in that specific area of medicine (negligence)
- that you have suffered a physical or mental injury as a direct result of the negligent action (causation)
Sometimes it is difficult to know whether the harm has been caused directly by the clinical negligence or as a consequence of some underlying disease or illness.
For a claim to be successful you have to prove both negligence and causation. You cannot claim compensation just because someone has done something wrong. You have to prove that this has caused you significant injury.
If we think that your case is worth investigating we will first of all obtain your medical records. These will be checked through and put in order before being sent to an independent medical expert who will compile a detailed report for us. A supporting independent medical opinion is necessary for any case to succeed.
If we consider that we have enough evidence to bring a successful medical negligence claim for compensation we will issue legal proceedings or try to negotiate the settlement of your claim. Often clinical negligence cases can be settled without the need to proceed to trial.
4. Funding
Clinical negligence claims can be very expensive because of the work involved and the need to involve medical experts.
There are 4 ways of funding a claim:
- Public Funding (formerly known as Legal Aid) - before we can decide whether you are eligible for public funding we will need to assess your financial situation in detail.
- Legal Expense Insurance - Some insurance policies (e.g. Home Contents Insurance) will cover you for medico legal claims.
- Private Funding - the cost of funding your claim will largely depend on how complex it is. We will give you an estimate of the total cost before you make a final decision to proceed.
- Conditional Fee ("No win-No fee") - in some circumstances we may be willing to take on a case on this basis.
- Trade Union Funding - if you are a member of a trade union, a benefit of membership may include legal expense cover.
We offer a free initial consultation to discuss your case regardless of how it will be funded.
5. Limitation (Time Limits)
Legal action must be started within three years of the date you first knew, or could reasonably have been expected to know, that something had gone wrong with your medical treatment (this is called date of knowledge)
This will usually be quite soon after the operation or treatment has taken place but occasionally it will not become obvious that an intervention has had long term consequences until months, or sometimes years, after the event.
If, however, the claimant is under 18, the 3 year time limit only expires on his/her 21st birthday.
For people under a legal disability (i.e. those suffering from a mental disorder) no limitation period applies.
If someone has died because of negligence the 3 year time limit runs from the date of death.
The courts strictly enforce time limits and it is only in exceptional circumstances that a Judge will exercise discretion to allow a case to be brought “out of time”.
As it takes time to investigate a claim it is a good idea to start proceedings well before the end of the limitation period. Also, the sooner the case is investigated the more likely it is that documents will still be available and that people will be able to remember what happened.
6. Mediation
Mediation is now strongly encouraged by the courts. Many people want an apology, or an explanation of how the accident happened or an assurance that lessons have been learned, and mediation can often achieve this in addition to (not instead of) obtaining maximum compensation.
JMW Medical Negligence Solicitors offer free initial advice on clinical and medical negligence claims, evaluating whether you have a case. We are able to deal with cases using public funding (formerly Legal Aid) or No Win No Fee in appropriate cases.
For an assessment of your potential claim, please click here to complete our online enquiry form and one of our specialists will contact you shortly
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