Medical Negligence: Your Questions Answered (FAQs)
JMW are one of the UK's leading medical negligence teams, below are some questions we are regularly asked by our clients and prospective clients.
How is mediation used?
The role of mediation in claims is increasing - it is often a good way to gain an apology for what happened and any injury caused.
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.
Can I change my solicitor?
It is perfectly acceptable to wish to change your solicitor part way through a case. There can be many reasons for this.
- You may have chosen a firm because they were local or recommended but in fact they are not specialist solicitors
- You were allocated solicitors by your legal expenses insurance provider and you do not feel they best represent your needs
- You are unhappy with how the case has progressed and you feel that the solicitor is responsible for this
- You are unhappy with the level of service you have received.
It is important that you have the best representation possible for a claim as such cases can be very complex.
Changing solicitors is a relatively straightforward process. It is not dependent on what stage the case is at or the way a case is funded. It is dependent on assessment of the claim in order to establish that the case has reasonable prospects of success and that we feel confident that we can assist you with the claim.
The main factor which would affect our ability to take on a case from another solicitor would be ‘limitation’. As solicitors we must be sure that there is enough time remaining to investigate the claim and issue proceedings before the ‘limitation’ period expires.
Is there a time limit for starting a claim?
To succeed with a medical negligence claim, it is important to stick within the strict time limits that apply for launching a case.
In the vast majority of cases, 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 the 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 the claimant is under 18, the three-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 three-year time limit runs from the date of death
The courts strictly enforce time limits for medical negligence claims, 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 medical negligence 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.
How much is my claim worth?
It is impossible to accurately calculate the compensation you will receive for medical negligence. A compensation calculator for claims of this nature would be highly inaccurate because each case is unique, with a range of different factors affecting the value of your claim. For example, if two patients are misdiagnosed with a disease and one individual spends a longer period off work as a result, their claims will differ because a loss of earnings is considered when compensation payouts are made.
For an accurate assessment of what your claim could be worth call us on 0345 872 6666 and give us a few details - or complete the enquiry form at the top of this page.
As with other compensation claims, the most serious injuries and diseases affecting major organs such as the brain or spine are likely to receive larger payouts.
At JMW we calculate claims by taking the following factors into account:
- The severity of the injury
- Whether your injury or medical complications are permanent or temporary
- Loss of earnings
- Emotional and psychological trauma
- The costs of rehabilitation and further medical treatment
If you have suffered damage caused by the negligence of a medical professional the best course of action you can take is seeking the help of experienced lawyers. At JMW we have the specialist knowledge required to make a successful claim on your behalf. We will always approach your case on its own merit, ensuring your compensation payout is appropriate to your individual circumstances.
What is medical 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, fall below a reasonable standard, 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, a GP may fail to recognise the seriousness of symptoms, or a baby may be damaged because of a mishandled birth.
Can I claim compensation?
What a claimant needs to demonstrate in order to make a successful claim. Advice from JMW Solcitors.
If you have been harmed, either physically or mentally, because of the negligence of a health care professional, you may be able to claim 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.
Why do some claims take months to settle?
Needless delays are not in the interest of any of the parties involved in a claim for clinical negligence, but a claimant will face necessary periods of waiting between an injury being suffered and a settlement or an appearance in court.
In some cases, a necessary cause may be long-term uncertainty regarding the results of medical negligence such as birth injury, surgical accident or another incident. If the prognoses for a condition are uncertain, it is often wise, or even necessary, to let the situation become clearer before a reliable estimate of the appropriate levels of compensation for the case can be made.
It is important to remember that this does not mean that a person affected by a potential case of negligence should avoid contacting a lawyer while the prognosis remains uncertain; conditions regarding time limits for civil claims still apply, so the initial stages, at least, should be brought within the appropriate period, which may be three years from the incident.
Before a claim moves to formal legal proceedings, mediation may be undertaken; while successful mediation may lead to a fast result, failure will mean that the time spent in mediation will have extended the duration of the process as the claim goes into the court system.
Once the case moves to formal proceedings, establishing the particulars and securing the medical body's response in defence can take several months. This should not be thought of as a delay; it is an essential part of the process and as such should not be rushed.
It is likely that a claim will need to call expert witnesses. These are people who are likely to have busy schedules, particularly if their opinion is sought on many matters, which becomes more probable the more highly they are esteemed. A case may find itself, therefore, dependent on an expert's calendar for its progression. The schedules of a court will also influence the duration of a case.
Under the leadership of partners Eddie Jones, the Clinical Negligence department of JMW Solicitors is able to advise on all aspects of the process, including their likely duration. The department offers the experience and expertise to ensure that all cases proceed as quickly as is possible, and provides sensitive support to all clients.
Questions to ask your solicitor
Medical negligence cases are complex, usually hard-fought by the opponent and require specialist skills and experience to secure a successful outcome.
It is vital therefore that when you are selecting a solicitor to represent you opt for one who has the necessary expertise. This is important not just to ensure that your case is successful, but also so that you receive the maximum amount of compensation that you are entitled to and do not lose out financially.
However sadly there are non-specialist firms who advertise for cases despite not having valid experience, or the necessary skills, qualifications and accreditations. As all the solicitors at JMW specialise in the field and have done for many years we have put together a guide to choosing right solicitor for people who have been affected by medical errors.
All patients and families who are thinking of making a claim should ask the solicitors they enquire with the questions below to find out if they truly specialise in medical negligence before instructing them.
1. Do you only deal with cases of clinical negligence?
While many firms, including JMW, are ‘full service’ and offer a broad spectrum of legal services any that claim to specialise in medical negligence will have a team or department that is completely dedicated to this area of law.
The medical negligence department at JMW only deals with cases on behalf of patients and their families and all our specialist solicitors never work on any other type of claim, such as personal injury. Make this your first question when thinking of instructing a solicitor on a claim and the answer should help you to identify if you speaking to someone with genuine expertise in this complex area of law.
2. Have you successfully settled any clinical/medical negligence cases?
Experience is vital as there are many complicated and technical aspects of claims that require careful management. Check that your solicitor has successfully settled other claims and ask for details on the amount of compensation their team has secured on cases and the number and types of cases that your potential solicitor has personally settled.
The solicitors at JMW have decades of experience between them and have successfully settled thousands of claims. However not all firms in the marketplace have this extensive experience and without asking this question a client may not realise they are in the wrong hands.
3. Has your team dealt with cases like mine before?
This is another key question to ask before instructing a solicitor as having experience of similar claims within the team can make the difference between success and failure for the case. It will also mean that your solicitor understands what you are going through, the challenges you are facing and can empathise with your situation more easily. This can be very important on medical negligence cases as they can be stressful for clients and having a solicitor who understands your problems can lift the burden.
The chances are, if they are a specialist team such as the one at JMW, they will have dealt with similar cases before. If they have not then take care to research their experience thoroughly before instructing them and shop around if you have any doubts.
4. Will I be able to deal with my solicitor directly?
At JMW we find that our clients enjoy the reassurance that comes from being able to speak to their solicitor directly whenever they have a question or query about their case. In our team, the solicitor who takes on your case will have a hands-on approach from day 1 and will be the one managing it and ensuring it progresses without delay. This means our clients have a named solicitor who they can go to if they need to check anything or just need a bit of support.
However at some firms the solicitor who initially takes on the case will not have day-to-day involvement in it and will merely check on progress from time-to-time. If you would find this approach concerning it is worth checking at the outset how your case would be managed, how much involvement your solicitor would have and if you will be able to contact them whenever you need to.
5. Are your solicitors members of any leading clinical/medical negligence
A key sign that you are dealing with a specialist firm is if they have solicitors who are on the Law Society’s Clinical Negligence Panel. This accreditation is only awarded to solicitors who can prove they have extensive skills and experience in the field, such as several members of
the JMW team.
Other checks to make include asking if the firm is ranked in legal industry bibles Chambers and Partners and the Legal 500 and if they are on the Action against Medical Accidents (AvMA) referral panel. If they do not then you might not be speaking to a specialist firm and you might be taking a risk by instructing them.
The specialist solicitors at JMW rank highly in Chambers and the Legal 500 and are approved by AvMA to act for clients that seek help from them.
What is the Role of the NHS Litigation Authority?
Since 1995, most solicitors specialising in clinical negligence are likely to have dealt with the NHS Litigation Authority (NHSLA), as it is the body that deals with claims for clinical, surgical and medical negligence made against the NHS.
The role of the NHSLA is two-fold; it also maintains an active risk management programme that is intended to minimise the chances of the health service facing a claim over its treatment of patients.
Once the NHSLA is called into a situation where a patient has suffered personal injury or loss and where a claim is to be made, it will provide the trust involved with relevant legal advisors, who are likely to attempt to settle with those of the claimant. Very few negligence claims are taken to trial, as an appropriate settlement is likely to be the preferred outcome for both claimant and trust. However, in situations where a mutually satisfactory definition of what is appropriate cannot be reached, and a court hearing therefore becomes necessary, the NHSLA solicitors will also represent the trust alleged to be responsible for the injury suffered by the claimant.
Although the NHSLA's role is to support and defend the medical profession in such claims, it is a public body and therefore provides information on its website to patients about the criteria that must be satisfied before a claim becomes viable, and methods of contacting an appropriate lawyer approved by the charity Action against Medical Accidents (AvMA). It also provides information about alternative methods of dispute resolution.
The same site also provides information about the number and value of claims made each year in its annual reports and factsheets, which are all available to patients as well as clinicians. These show that the highest figures for 2007/08, both in terms of frequency and value, were related to birth injury and surgical error cases.
The clinical negligence department of Manchester law firm JMW Solicitors is highly experienced in leading claimants through the complex legislation to successful outcomes. The team, led by partner Eddie Jones, contains AvMA-approved lawyers with a Legal Aid franchise, and has been described as "Extremely committed and hands-on" by Chambers Guide to the UK Legal Profession.