Medical Negligence Solicitors

Who can I make a claim against?

Doctors, nurses, dentists and all other healthcare professionals have a duty to look after you and treat you to an accepted medical standard. If they fail to provide you with appropriate treatment and you suffer an injury as a result, you may be entitled to make a claim for compensation.

What do I need to prove to win my case?

Just because a medical professional has made a mistake, it doesn’t mean you’ll automatically be entitled to compensation. To bring a successful claim for medical negligence, you will need to satisfy two legal tests known as ‘breach of duty’ and ‘causation’.

• Breach of Duty – to establish there has been a breach of duty, you will need to show that the medical treatment you received fell below a reasonable standard. 
• Causation – to establish causation you’ll need to show that the breach of duty directly caused you to suffer a physical or psychological injury that would not have otherwise happened.

It is essential to establish a link between the breach of duty and causation otherwise your claim will not succeed. You will then have to prove the extent of your losses and damage.

How will my case be funded?

We’ll explore all funding options with you in an open and transparent manner. There are four funding types available for medical negligence cases. These are:

• Conditional Fee Agreements (“No win, no fee”) – This means that we would not charge you any legal fees unless you win your case and would seek to recover our costs from your opponent in the first instance. The agreement permits a maximum deduction from your damages of 25%.
• ATE insurance – When we’re acting on a no win no fee basis, we may also advise you to take out a specialist type of insurance called After the Event Insurance Policy (ATE insurance). This is to protect you if your claim isn’t successful. 
• Public funding (legal aid) – Legal aid or public funding from the Legal Aid Agency is still available for some cases. However, Legal Aid is now limited to cases where a child has suffered a brain injury during pregnancy, birth, or shortly after birth, which has resulted in severe physical or mental disability
• Legal Expenses Insurance (BTE) – Many people have this type of insurance but are unaware of it. Please carefully check any insurance policies you have, including motor and household insurance, and credit card agreements.
• Private funding – If we’re unable to act for you on a ‘no win, no fee’ basis then it may be possible to instruct us to act on a private retainer.

If you would like to discuss any of these funding methods further, you can speak with your solicitor.

Who pays the compensation?

Who pays the compensation if your case is successful will depend on who the Defendant is.

All NHS Trusts in England pay into a scheme called the Clinical Negligence Scheme for Trusts which is managed by NHS Resolution (NHSR). All compensation payments made by an NHS Defendant are paid from this fund. NHSR employs a panel of approved solicitors who represent NHS Trusts.

GPs, private doctors or dentists arrange their own insurance with specialist private insurance companies. These organisations are funded by premiums paid by their members.

Will I need to go to court?

Most cases settle through negotiation, with there being no need to take the matter to a full trial (i.e. argue your case in court, before a judge). If your case does go to trial, it will inevitably take longer to conclude than if it were to settle outside of court through negotiation. Although it’s rare for cases to go to trial – statistics show that just 0.5% of all clinical negligence cases go to trial.

If your case reaches the trial stage, then you’ll be called as a witness to give evidence in front of a judge. Your experts and other witnesses will also give evidence – as will the defence witnesses. If your claim gets to this stage, we can advise you about it in more detail.

What is the duty of Candour?

The professional duty of Candour is a statutory duty imposed on all healthcare professionals.

Every healthcare professional must be open and honest with patients when something that goes wrong with their treatment causes, or has the potential to cause, harm or distress. This means that healthcare professionals must:

• Tell the patient (or, where appropriate, the patient’s advocate, carer or family) when something has gone wrong
• Apologise
• Offer an appropriate remedy or support to put matters right if possible
• Explain fully the short and long term effects of what has happened.

Healthcare professionals must also be open and honest with their colleagues, employers and relevant organisations, to take part in reviews and investigations when requested, and encourage a learning culture by reporting adverse incidents that lead to harm, as well as near misses.

They must also be open and honest with their regulators, raising concerns where appropriate. They must support and encourage each other to be open and honest, and not stop someone from raising concerns.

What can I claim compensation for?

If you’ve suffered injury or damages due to medical negligence, you may be entitled to claim for two types of compensation:

• General Damages: For the pain, suffering and loss of amenity caused by the injury itself.
• Special Damages: Special Damages are the damages awarded for any past or future financial loss. These are individually calculated for each case. Special damages claims can comprise:
  • Loss of earnings/loss of promotion prospects – for unpaid time off work in the past or for loss of promotion prospects in the future.
  • Past care and future care needs – a claim can be made for the unpaid (gratuitous) care provided by family members. We will take details of who has looked after you and calculate how many hours care has been provided. In significant cases, we will obtain expert evidence on the care required.
  • Aids and equipment – if aids and equipment are required, this will be assessed by an expert Occupational Therapist that we will arrange to meet with you.
  • Future medical treatment –if further treatment is needed, you are entitled to claim for this on a private paying basis.
  • Prosthetics – amputees are entitled to claim for the costs of prosthetic in the private sector. It is generally accepted that it is not reasonable to expect a claimant to rely on NHS prosthetics only.
  • Pension loss – if a medical accident has forced you to leave your job, it will be necessary to calculate your pension loss. This can sometimes be quite complex and may require an accountancy expert.
  • Past/Future DIY and gardening – if your injuries prevent you from undertaking household tasks, a claim can be made for employing people to carry out those tasks on your behalf.
  • Interest – interest is also claimed on all past losses

It can be difficult to advise at the outset as to the amount of compensation you may obtain if your case is successful. Every case is judged on an individual basis and the amount of compensation awarded can change drastically. As your case progresses, your solicitor will be able to give you a more accurate estimate of what your case is likely to be worth.

Can I bring a claim on behalf of my child?

Any injured person under 18 is considered a child. They are considered unable to have ‘capacity’ to conduct the claim themselves and deal directly with solicitors.

A claim involving a child is therefore conducted by a litigation friend, who acts on the child’s behalf. A litigation friend is often one of the child’s parents or a guardian. However, anyone that the court deems suitable can be a litigation friend. For example a relative or family friend, a solicitor or someone who has a lasting power of attorney.

Your solicitor will be able to guide through the process of being appointed as your child’s litigation friend.

Can I bring a claim on behalf of a deceased relative?

When someone dies, it may be possible for you to bring a claim on behalf of their estate, as long as you have standing to do so.

You will need to obtain a Grant of Probate or Letters of Administration in order to instruct us to act in such a case.

I don’t think my complaint has been properly dealt with.

If you are not happy with the response to your complaint, you are entitled to request an Independent Review by the Parliamentary and Health Service Ombudsman.

The independent review will be undertaken by the Parliamentary and Health Service Ombudsman (PHSO). The PHSO will make a final decision on your complaint and will look at it afresh. There is no charge for this service.