What is the Medical Negligence Claims Process?

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What is the Medical Negligence Claims Process?

If you or a loved one have suffered harm due to the negligence of a medical professional, you may be entitled to compensation for your pain, suffering and financial loss. However, if you have never made a claim like this before, you may be unsure about where to start.

The process of making a medical negligence claim can be complex, but understanding the steps involved can help you prepare for what lies ahead. By working closely with qualified solicitors with experience in making clinical negligence claims, you will stand the best chance of achieving a positive outcome for your case.

In this comprehensive guide, the expert medical negligence team at JMW Solicitors will walk you through every step involved in making a clinical or medical negligence claim, explaining everything you will need to know to work out whether you are entitled to compensation and how to maximise your chances of success.

Am I entitled to make a medical negligence claim?

To determine whether you are entitled to make a medical negligence claim, you must be able to demonstrate that your case meets the following key criteria:

  1. That the healthcare professional responsible for providing your medical treatment breached their duty of care, meaning they failed to provide the standard of care expected of a competent professional in their field
  2. That this breach of duty directly caused or significantly contributed to your injury or illness, and that this has had a significant effect on your life
  3. That you are making the claim within the legal time limit, which is three years from the date of the incident or the date you became aware of the negligent treatment in most cases. There are some exceptions, such as cases involving children, or individuals who lack mental capacity, where the time limit may be extended or removed altogether.

To learn more about the eligibility criteria associated with a medical negligence case and how to determine whether you qualify to make a claim, take a look at our guide entitled "What is Medical Negligence?".

How to identify when a healthcare professional has breached their duty of care

One of the most crucial aspects of making a medical negligence claim is being able to prove that the medical professional did not meet their duty of care.

What is a duty of care?

This is a legal responsibility that healthcare professionals have towards their patients, meaning they must provide an acceptable standard of care to ensure the wellbeing and safety of their patients. This duty of care applies to doctors, nurses, therapists and other healthcare providers. To establish a duty of care, you must demonstrate that there was a professional relationship between the healthcare provider and the patient, which created a responsibility to act in the best interests of the patient.

Proving a breach of duty

Once you establish that the healthcare professional owed a duty of care, you must prove that they breached this duty. A breach occurs when the standard of care provided by the healthcare professional falls below what would be reasonably expected from a competent professional in the same field. To determine if a breach of duty has occurred, you will need to compare the actions or inactions of the healthcare professional in question to the accepted standards of care within their field of practice. If the care provided significantly deviates from these standards, it is considered a breach of duty.

To establish liability, it must be demonstrated that the breach directly caused or significantly contributed to the harm suffered by the patient, also known as causation. You must show that the injury or illness would not have occurred - or would have been less severe - had the healthcare professional not breached their duty of care. This typically requires opinions to be provided by independent medical experts, who will be able to review the medical evidence and establish a link between the breach of duty and the harm experienced by the claimant if there is one.

Finally, the claimant must also be able to show they experienced injury or losses as a result of the breach of duty. This could include both physical and emotional harm, as well as financial losses resulting from the injury or illness.

Examples of what can be claimed for include:

  • Medical expenses related to the cost of care and treatment
  • Loss of earnings, or the loss of the ability to remain in work
  • Pain and suffering, and loss of enjoyment of life

Your medical negligence lawyer will help you compile evidence to support your claim for damages and calculate an appropriate compensation amount based on the severity of the harm and the extent of the losses incurred. By gathering evidence and working with an experienced solicitor, you can build a strong case to support your claim and seek the compensation you deserve.

A step-by-step guide to the medical negligence compensation claim process

Making a medical negligence claim involves going through a set process, working with your legal team to gather evidence, putting together the strongest possible case and determining  how much compensation you require.

Here, we explain the various steps of the medical negligence claim process to ensure that you know what to expect if you choose to pursue compensation.

Step 1: Getting in touch with an expert medical negligence solicitor

The first step in the medical negligence claim process is to consult a specialist medical negligence solicitor. This is a crucial stage, as the solicitor you choose will play a significant role in guiding you through the complex legal process.

It is vital to select a specialist solicitor with proven expertise in medical negligence cases, as these claims can be highly complex and require a thorough understanding of both medical and legal issues. Expert medical negligence lawyers will have the experience and understanding to navigate these complexities and ensure that your case is handled effectively and efficiently.

When selecting a medical negligence solicitor, you should consider the following factors:

  • Experience - you will need to find a solicitor with a proven track record of success with clinical negligence cases. This will ensure that they are familiar with the relevant law, medical terminology and processes involved in your claim.
  • Accreditation - look for a solicitor is accredited by a professional body such as the Solicitors Regulation Authority (SRA), the Association of Personal Injury Lawyers (APIL), or Action against Medical Accidents (AvMA). This demonstrates that they have been recognised for their expertise in medical negligence cases.
  • Communication - a good solicitor should be able to explain complex legal concepts in clear, concise language and keep you informed throughout the process. Ensure that you feel comfortable discussing your case with them and that they are approachable and responsive to your needs.
  • Reputation - research the solicitor's reputation through reviews, testimonials and recommendations from friends, family or colleagues who have had similar experiences.

Once you have identified a suitable solicitor, the next step is to arrange an initial consultation. This meeting provides an opportunity for the solicitor to assess the merits of your case and determine if you have a valid claim, and explain the steps involved in the process.

Step 2: Discussing how your claim will be funded

Funding your medical negligence claim is a crucial aspect to consider when pursuing compensation. There are several options available for funding your case, and your solicitor will help you understand the best choice for your situation during your initial consultation.

These options include:

  • No win, no fee agreements - also known as a conditional fee agreement (CFA), this funding option means you will not have to pay any legal fees if your case is unsuccessful. If we win your case, most of our legal fees will be paid by the other side, with only a capped amount payable from your compensation. As such, no win, no fee medical negligence claims are among the most popular funding options.
  • Legal aid - in some limited circumstances, you may be eligible for legal aid to help cover the costs of your medical negligence claim. Legal aid is means-tested, and eligibility depends on your financial situation and the merits of your case. Legal aid for medical negligence cases is only available for children with birth injury claims resulting in severe disability.
  • Legal expenses insurance - some insurance policies, such as home insurance, may include legal expenses cover that can be used for funding medical negligence claims. It is essential to review your existing insurance policies to determine if they provide legal expenses insurance, and if your claim is eligible under the terms of the policy.

When selecting the appropriate funding method for your medical negligence claim, it is essential to consider your financial situation, the strength of your case, and the potential costs and risks involved. Discuss your options with your solicitor during the initial consultation to decide on the most suitable option for your specific circumstances.

Step 3: Obtaining your medical records

Once you have selected a solicitor to represent you, they will need to obtain your medical records to assess the details of your case and gather evidence. This is a vital step in building a robust medical negligence claim, as these records provide essential evidence regarding the care you received, the healthcare professionals involved, and the impact of the alleged negligence on your health.

Under the General Data Protection Regulation (GDPR) and the UK Data Protection Act 2018, you have the right to access your medical records. You and your legal team will be able to gather the medical evidence you need through the following process:

  • Determining which healthcare facilities and medical professionals were involved in your care during the period of alleged negligence - this may include hospitals, GP surgeries, dental practices or other healthcare providers.
  • Submitting a Subject Access Request (SAR) to the relevant healthcare providers, requesting a copy of your records. The SAR should include your personal details, such as your name, date of birth and NHS number, as well as the specific time period and types of records you wish to obtain (e.g. consultation notes, test results, imaging studies, etc.). You may need to provide proof of identity to verify your request.
  • Awaiting a response - healthcare providers are legally required to respond to your SAR within one calendar month, although this deadline can be extended in complex cases.

Once we have obtained your records, your solicitor will review them to identify any evidence of negligence, such as missed diagnoses, inappropriate treatments or failure to obtain informed consent.

Step 4: Getting an independent opinion from a medical expert

Your legal representatives will instruct an independent medical expert to review the details of your medical negligence claim, in order to provide an opinion on whether the medical practitioner can be shown to have breached their duty of care, and if the breach directly caused or contributed to your injury.

Medical experts play a key role in medical negligence claims, as their expertise and experience can help to clarify complex medical issues, establish the standard of care that should have been provided, and whether mistakes that were made were responsible for causing harm. At a later stage they may also provide an opinion on the extent of your injuries or the long-term consequences of the alleged negligence, which can help in valuing your claim.

To obtain an independent medical expert opinion, your solicitor will need to do the following:

  • Identify an appropriate medical expert with specific expertise in a relevant field of medicine, as well as experience in dealing with similar cases and a strong reputation within the medical community. The expert should be independent and have no direct involvement in your medical treatment, or the alleged clinical negligence.
  • Share your medical records and any other relevant documentation with the chosen expert, enabling them to thoroughly review your case and form an opinion on the standard of care provided.
  • Obtain a written report outlining the expert's opinion on whether there was a breach of duty, which may also include details on your prognosis, future treatment needs and any long-term consequences of the alleged negligent treatment.

It is important to note that the expert's opinion is not guaranteed to be in your favour, and it is possible that they may find that the medical professionals did not breach their duty of care, or that the breach did not cause your harm. In such cases, your solicitor will discuss the implications of the expert's findings and advise you on whether the medical negligence claim can still be taken forwards.

Step 5: Valuing the claim

Once your solicitor has gathered evidence and established the elements of your claim, they will need to value your claim, based on the harm you have suffered as a result of the alleged negligence. Compensation in medical negligence claims is typically divided into two main categories:

  • General damages -this is calculated to compensate those who have suffered medical negligence for the pain, suffering and loss of capability they have experienced. This includes both physical and psychological harm, as well as any impact on your quality of life, such as the inability to participate in hobbies or enjoy social activities.
  • Special damages: Special damages cover any financial losses or expenses you have incurred as a result of the negligent treatment, including the cost of medical treatment, rehabilitation and ongoing care, as well as loss of earnings, treatment-related travel expenses, and the cost of any necessary modifications to your home to accommodate your needs due to your injuries.

With these in mind, the value of your medical negligence claim will depend on various factors, including:

  • The severity and nature of your injuries
  • The impact of the medical negligence on your quality of life
  • Your age and life expectancy, with younger claimants or those with a longer life expectancy generally eligible for a higher amount of financial compensation
  • Your financial losses, both past and future

Once your solicitor has gathered the necessary medical evidence and assessed the factors influencing your claim's value, they will provide you with an estimated compensation range. This estimate can be used as a starting point in negotiations with the defendant, or as a basis for your claim in the unlikely event of your case proceeding to court.

It is essential to remember that each medical negligence case is unique, and the value of your claim will depend on your specific circumstances. By working closely with your solicitor and providing all the necessary evidence, you can help ensure that your claim is accurately valued.

Step 6: Presenting the case to the defendant

Once you have gathered all the necessary evidence, your solicitor will present your case to the defendant. This involves formally notifying the defendant of your claim and providing them with an opportunity to respond through a letter of claim, a formal document that outlines all of the details of the claim, including the allegations of negligence, the harm you have suffered, the supporting evidence, and the compensation you are seeking.

This will typically be sent to the opposing party's legal representative, or the relevant NHS trust or private healthcare provider. This letter serves as formal notice of your intention to pursue a claim and provides the defendant with an opportunity to investigate the allegations and respond. They must acknowledge receipt of the letter of claim within 14 days, confirming that they have received it and will be investigating the allegations.

Step 7: Letter of response - denying or accepting responsibility

Upon receiving the letter of claim, the defendant has four months to investigate the allegations and respond with a letter of response. With the assistance of their own legal representatives, they will need to conduct their investigation into the allegations of negligence, which may involve reviewing your records, obtaining expert opinions of their own, and gathering any additional evidence relevant to the case.

The eventual letter of response will outline their position on the allegations, either admitting or denying liability, and providing any additional information or evidence they have gathered during their investigation. There are several possible outcomes at this stage:

  1. If the defendant admits liability, either fully or partially, negotiations can begin to settle the clinical negligence claim. Your solicitor will work with the defendant's legal representative to agree on a fair compensation amount based on the evidence provided.
  2. If the defendant denies liability, your solicitor will need to review the defendant's response and any additional evidence they have provided. Based on this information, your solicitor will advise you on the best course of action, which may include gathering further evidence, seeking additional expert opinions, or preparing for court proceedings.
  3. If the defendant makes a settlement offer, your solicitor will discuss the offer with you and advise you on whether it is reasonable based on the evidence and the value of your claim. If the offer is deemed insufficient, your solicitor will negotiate with the defendant to reach a more suitable settlement, or proceed to court if negotiations are unsuccessful.

Step 8: Preparing for court proceedings if necessary

If the defendant denies liability or if negotiations fail to reach a satisfactory settlement, it may be necessary to proceed to court. While the majority of medical negligence claims are resolved without the need for a trial, it is essential to be prepared for the possibility of going to court.

However, even after court proceedings have begun, most medical negligence cases still settle before trial and only a very small minority do not. 

If court proceedings are necessary, your solicitor will follow these steps:

  • Formally issue court proceedings by filing a claim form and particulars of the claim with the court. This will include details of the allegations, the harm you have suffered, and the compensation you are seeking.
  • Serve the claim on the defendant, along with the particulars of the claim and any supporting documents. The defendant will then have a specified time to file a defence, outlining their position on the allegations and any additional evidence they wish to rely upon.
  • Prepare for trial, working with you to gather any further evidence, refine your case, and develop a trial strategy. This may involve obtaining additional expert opinions to prove medical negligence, interviewing witnesses, or seeking further financial documentation to support your claim.

Throughout the court proceedings, your solicitor will work to help you understand the court process, advise you on your options, and keep you informed of any developments in your case. They will also advocate for your interests at all stages, while working closely with medical experts, barristers and other professionals involved in your case to ensure that your clinical negligence claim is presented effectively and persuasively.

Step 9: Getting ready for trial

If your case goes to trial, your solicitor will instruct an experienced barrister to represent you in court and present your case to the judge. The key stages of a medical negligence trial include:

  • Trial - at the trial, both parties will present their case, including opening statements, witness evidence, expert evidence, and closing arguments. 
  • Judgment - after hearing both sides, the judge will make a decision on the case, determining whether the defendant is liable for the alleged negligent treatment and, if so, the amount of medical negligence compensation to be awarded.
  • Appeal - if either party disagrees with the judgement, they may have the right to appeal the decision to a higher court, subject to certain criteria and time limits.

It is essential to remember that going to court can be a lengthy and complex process, and the outcome is not guaranteed. However, by working closely with your solicitor and ensuring that your case is well-prepared and supported by robust evidence, you can increase the likelihood of a successful outcome and secure the compensation you deserve.

How long does it take to make a claim?

When you make a medical negligence claim, the length of time it will take to be fully resolved will vary significantly depending on the specific details of the case. Factors that can influence the duration of a claim include:

  • The complexity of the case - claims that involve multiple medical practitioners or complicated issues may require more time to investigate and gather evidence. This can result in a longer claim duration
  • The availability of evidence - gathering medical records, expert opinions and financial documentation can take time, especially if there are delays in obtaining information, or if additional evidence is needed to support the claim
  • The defendant's response - your opponent's willingness to accept culpability or engage in negotiations can impact the duration of the process. If they dispute liability or the proposed compensation amount, the process may take longer and may need to be taken to court
  • The complexity of the court proceedings - if a full trial is necessary, the duration of the claim may be significantly longer due to the time it takes to prepare for trial, the court's schedule, and the possibility of appeals

Here are some typical timeframes for the different stages of the process:

  1. Investigation and gathering evidence - several months to a year
  2. Presenting the case to the defendant - once the evidence has been gathered, the defendant has four months to respond to the letter of claim, although extensions may be granted in complex cases
  3. Negotiations and settlement - if the defendant admits liability, negotiations can take a few months to a year
  4. Court proceedings - may take an additional two years or more

In order to ensure that this process can be completed as smoothly as possible, it is vital to adhere to all relevant time limits. When you make a medical negligence claim, there is a general time limit of three years from the date of the alleged negligence or the date you became aware of the negligence (known as the 'date of knowledge') to bring your claim.

Failure to do so may result in your claim being time-barred and ineligible for compensation. Exceptions to this time limit exist - particularly for cases involving children, where the three-year limit begins when the child turns 18, or individuals who lack mental capacity, who do not have any legal time limits.

As such, it is essential to seek legal advice from a solicitor that specialises in medical negligence claims as soon as possible. This will help ensure that your claim is investigated and pursued within the required time limits, increasing the likelihood of a successful outcome in as short a timescale as possible.

Find out more

The process of making a medical negligence claim can be complex and challenging, but understanding each step can help you prepare for the journey ahead. By working closely with an experienced solicitor, you can navigate the process with confidence. Remember to be patient, as these cases can take time to resolve, but with determination and the right support, you can achieve the clinical negligence compensation and justice that you deserve.

If you have received substandard medical treatment and want to know more about how to make a compensation claim, get in touch with the expert medical negligence solicitors at JMW today. We are able to take cases on a no win, no fee agreement, and have a huge amount of experience and skill. 

To speak to a specialist solicitor from our medical negligence team, give us a call on 0345 872 6666 today, or complete our online enquiry form to arrange for us to call you back at a more convenient time.

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