Latest insights from our experts
Posted 5 June 2017
Medical Negligence FAQs
What are the time limits for bringing a medical negligence claim?
For an adult who has capacity (the ability to handle his/her legal affairs), the limitation period is 3 years. In some cases, for example where a cancer has been missed, you may not become aware of the mistake until some time after it happened. Because of this, the 3-year period does not start running from the day the substandard medical care occurred. Rather, the law uses the ‘date of knowledge’. The 3 years starts running from when you, or a reasonable person, did or should have first known that you had suffered an injury as a result of what may have been a medical mistake.
There are some exceptions to this basic rule. First, some claims (usually involving fatalities) need to be brought under the Human Rights Act rather than under the law of negligence. Here, the limitation period is one year, not 3 years. Secondly, if the injured person is a child, no matter when the negligence occurred the 3 years do not start running until his or her 18th birthday.
Finally, if the injured person lacks capacity, so that they cannot handle their own legal affairs by themselves, the clock will not start running unless they acquire capacity again.
It is important to note however that what needs to be achieved before the deadline is not that you contact solicitors, or write to the hospital or GP surgery. Rather, legal proceedings must be started at court – and there are a number of steps which will need to be carried out before that is possible. It is therefore important that, if you are thinking about a claim, you speak to a solicitor as soon as possible even if you think you may have plenty of time.
Is there anything I should do before bringing a claim?
Bringing an NHS Complaint is a step often taken by people who do not wish to sue for compensation but are still concerned about what happened to them. Often, they are seeking an explanation; an apology; those responsible to be held to account; and changes to be made so that other patients do not find themselves in the same position in future. The Complaints procedure is designed to allow this.
However, many patients who are thinking about a legal claim will still benefit from bringing a Complaint first. The outcome of the process may help them decide whether or not they would stand a good chance of succeeding. Furthermore, if you would be eligible for legal aid (although that is now only available for babies who have suffered a severe neurological injury during or shortly after birth), the Legal Aid Agency insist that you bring a Complaint first before they will consider funding a claim.
Most hospitals will have a PALS (Patient Advice & Liaison Service) to provide help if you need it, although that is not necessary – the majority of patients will send a Complaint letter without requiring assistance. You should do this within 12 months of learning that your treatment was not ideal, although if you go beyond that deadline for good reason the hospital has discretion to respond to your Complaint even though it is out of time.
The hospital or GP surgery will then write back to let you know how swiftly they hope to reply properly. Sometimes a face to face meeting is offered but if you find that daunting, it is important to remember that your Complaint must still be dealt with even if you prefer not to attend a meeting.
Once you receive a reply, dealing with your concerns, the process is not necessarily over. You are still entitled to seek clarification or raise additional questions.
What you are told in the Complaint response is likely to be helpful in a later legal claim, particularly if fault has been admitted. A ‘duty of candour’ was introduced in 2014 which places greater pressure on health professionals to admit if they feel that something has gone wrong.
Can I bring an action in respect of a relative who has died?
Yes, although only certain family members are entitled to do this. You will need to establish the same things as if you were bringing a claim on your own behalf. However, the limitation period (see above) may be slightly different – if the alleged negligence occurred less than 3 years before the death, the clock will start running again from the date of death.
If the claim is successful, compensation will cover funeral costs and any lost dependency – for instance, if the deceased provided financially for you or anyone else. If the person who died was the bread-winner and would have continued working for many more years, the value of the claim can be significant.
In addition, one group of people can seek compensation for the grief and trauma of bereavement. This is limited to the spouse or civil partner; or the parents if the deceased was under 18. However, the amount that can be claimed for this is set by law and is thought by many to be very low. It presently stands at £12,980.
It should also be remembered that the amount of compensation may be reduced if the death was accelerated rather than caused – that is, if (without the negligent medical care) the person would have died soon in any case.
What level of compensation might I expect if my claim is successful?
This depends entirely on the circumstances. There are very few claims where you will know in advance what you would receive if the claim was successful – the main one being the statutory bereavement award referred to above, to compensate you for the negligently-caused death of a loved one. This is presently £12,980.
Otherwise, quantum (the value of the claim) will depend entirely on the facts of the case.
Quantum falls into two broad areas, called General Damages and Special Damages. General Damages are for the injury itself – pain, suffering, limited use of the affected part of the body, not being able to play sport or socialise, reduced life expectancy etc. Special Damages are ‘out of pocket’ losses, both past and future. These will typically include lost earnings, the need for care or equipment, physiotherapy, having to buy new or adapted accommodation, travel expenses and the need to pay someone to help with day to day activities.
When you first speak to a solicitor he or she will be looking for a very broad idea of approximately what your claim might be worth, if successful. This is important for two reasons. First, so you know whether the potential damages are worth the stress of bringing a legal claim. Secondly, because those who fund claims, such as insurance companies or the Legal Aid Agency, need to know that the claim will be proportionate since there are financial risks to you if you incur a lot of legal expenses in order to seek very modest levels of compensation.
How can I prove that my injuries are as a result of medical mistakes?
There are three hurdles, and all of these must be cleared. First, you need to show that you were owed a duty of care. This means that the person or organisation involved had a legal duty to take care of you. In medical cases, that is generally established very easily – if you are being treated by health professionals such as a doctor, nurse or midwife, then they will virtually always owe a duty of care.
Secondly, that duty must have been breached. The test of negligence is that the person or organisation acted in a way that no reasonable doctor, nurse or midwife would think is proper. This is where most arguments arise in medical claims and it is almost always the case that, unless fault is admitted very early on, independent medical experts will be required by both sides.
Thirdly, you need to establish causation. This looks at whether the injury might have occurred anyway, even without the negligence. A good illustration is where early signs of cancer should have been picked up but were not – but it is sometimes the case that even if they had been, it would still have been too late to do anything about it. Again, if there is a dispute as to causation then the parties will need medical experts to assist.
How would I pay for a clinical negligence claim?
It is extremely unusual for the injured patient to fund their own legal claim. Medical cases rely heavily on (expensive) experts, and often barristers, and very few people can afford to pay for this on a private basis. There are three possible alternatives.
- You will probably be aware of legal aid although it is now available only for one group of cases – where a baby has suffered a severe neurological injury (eg. brain damage) during birth or in the first few weeks of life.
- Alternatively, you may already hold insurance which would fund a legal claim, possibly as part of your house, contents or car policy. This is sometimes referred to as Legal Expenses Insurance or “Before The Event” insurance. However, even if you do possess this, most insurance companies insist on being notified of a possible claim within 6 months, and so you will need to speak to a solicitor very swiftly if you think that this may be available to you.
- The majority of claims are now funded by a combination of two methods. The first is a Conditional Fee Agreement or CFA, but often referred to as ‘no win no fee’. This is where your solicitor, and if one is required a barrister, will take the risk of acting for you even though they will not be paid anything if the claim is unsuccessful. To off-set that risk, if you do win your solicitor (and barrister) will take a proportion of your compensation.
The second method which tends to go hand in hand with a CFA is “After The Event” insurance. This is an insurance company who specialise in funding medical cases will pay for your disbursements such as expert fees or court fees, as the claim proceeds. As with a Conditional Fee Agreement, this is written off with no charge to you if the claim is unsuccessful; and, again, if you do win then the insurance company will ask that you pay them a premium out of your damages. The level of premium will depend on the amount you receive, so that it will always be a percentage of your winnings.
In all of the above, if you lose your claim you will not be asked to pay any fees or costs.
My child was injured during the delivery – can I bring a claim for him/her?
Yes – and in fact this is very commonplace. As explained above, if your child has suffered a severe neurological injury during birth or soon afterwards, he or she may be entitled to legal aid.
One parent will be asked to act as Litigation Friend, who will then give instructions to the solicitor and barrister and will make decisions as the claim proceeds. If the child reaches his or her 18th birthday whilst the claim is still going, and he or she has capacity, then upon turning 18 they will simply take over the running of the claim themselves and you will no longer be Litigation Friend.
Where the claimant is a child, there is an additional level of protection. Every out-of-court settlement must be approved by a judge, whose main focus is on ensuring that the child is receiving an appropriate amount of damages and so in these cases there is no risk of being under-compensated. Because of this, however, if there is any possibility that the child’s injury may worsen in future, a final settlement will be adjourned until that is no longer the case. This is because the compensation is a ‘once and for all’ payment – the child is not allowed to come back for more money if there is later a deterioration.
When a child is successful and is awarded damages, these are not paid directly to the child or his/her parents. Rather, the money is kept in a court trust fund and although most of it will remain there until the child’s 18th birthday, it is possible to ask for payments out to fund any necessary expenditure during the claimant’s childhood.
How long will it all take?
This varies greatly from case to case. Claims where the effects of the injury have now settled, with no risk of deterioration; where the compensation is easy to calculate; and where an early admission of fault is made, could be concluded in less than a year although this is very unusual. Generally, the claim will last for several years and although a handful of cases do go to trial, a great majority end with either the patient discontinuing the claim, usually because of receiving unsupportive expert evidence; or the Defendant (the hospital or GP being sued) making an acceptable offer to settle out of court. Either of these could occur at any point.
If you do start proceedings at court, then soon after that judge will set a court timetable, sometimes known as Directions. This will give dates for all of the future steps in the proceedings up to and including trial.
Is it necessary to go to trial in order to win my case?
No, and in fact doing so is rare. Legal dramas on television or in the cinema often involve trials but in real life that is very unusual. The great majority of medical claims conclude well before then – either by the Claimant receiving expert opinion that there was no negligence, so that he or she will need to discontinue; or by the hospital or GP surgery realising that they would probably lose at trial and so they will try to negotiate an out-of-court settlement.
Although settling a case can occur at any stage, and often very informally many settlements occur at a joint settlement meeting where the medico-legal teams of both sides will meet to try to agree a deal face to face. Far more cases conclude at JSM than at trial.
Would I have to pay the opponent’s costs if I lose?
No. Whether your case is funded by ‘Before The Event’ insurance, ‘no win no fee’ agreements or Legal Aid, if you have acted honestly and cooperated fully with your solicitors, you will not have to pay the opponent’s costs.
The only possibility of this happening would be if you were dishonest in providing information about what happened to you and your losses as a result; or if your cooperation is needed for your legal team to take a particular step and you unreasonably withhold that.
Will my bringing a claim prevent the same thing happening to other patients in my position?
For many people thinking about a legal claim, this is often a more important factor than obtaining compensation.
Unless your claim is completely groundless and there was obviously no fault, bringing a legal action is likely to make things safer in future. This is because organisations within the Health Service who administer and pay for these claims have initiated Risk Management procedures, because they do not wish the same thing to happen to anyone else. The NHS is keen that lessons are learned from mistakes, and Risk Management aims at sharing experiences so that the medical error is less likely to be repeated elsewhere in the country.
If I bring a claim, will it affect my own medical treatment in future?
This is understandably a very commonplace worry. However, a great many people who have brought or are bringing a legal claim still need on-going medical care from their local hospital or GP, and there is no evidence that that their treatment is compromised by the litigation. Hospitals are large organisations and it is unlikely that,say, a doctor treating you will even know that you are bringing a claim against another doctor in the same hospital.
If however your claim will lie against someone who is still dealing with you, particularly if this is your GP with whom you have an on-going relationship, it may avoid embarrassment to contact the surgery or hospital to notify them of your concern and to ask that you be treated by a different individual.
Will my solicitor be able to come to see me at home?
This is the ideal and at Tozers we always aim to meet clients face to face, no matter whereabouts in the country they live. It is much easier explaining things, and obtaining important information from you, in a meeting. Sometimes a Conference with Counsel is held fairly early, particularly in complex or high-value cases. This involves you, your solicitor, your barrister and any experts instructed all getting together to discuss your claim and the strengths, weaknesses and tactics. These are generally held at the barrister’s chambers in London and this meeting again gives an ideal opportunity to discuss things properly face to face.
My hospital have told me that I do not have a legal case because I consented to the treatment – is this correct?
No, unless the entire claim revolves only around whether or not you gave consent. It is important to remember that no-one ever consents to negligent care, so simply because you agreed to the risks of an operation does not mean that the surgeon can provide substandard care during that operation.
I want to bring a clinical negligence action but I am worried about publicity – can I avoid that?
If the claimant is under 18, courts accept that publicity is best avoided and so the judge will usually agree to some form of anonimity, usually involving the court documents using initials rather than a full name, and the solicitor’s address being used instead of the claimant’s.
If the claimant is an adult the same anonimity order can still be given but the judge will need good reasons to do so. Even if journalists do learn of the legal case through court documents, they only know who the parties are (you; and the hospital or GP you are suing) but no medical details.
However, if the case does (very unusually) proceed all the way to trial, that will be open to the public even where the claimant is a child. Even then, journalists prefer to run stories only with the cooperation of the parties so if you decline to give them a quote it is less likely that any publicity will result.
I want to bring a claim relating to the death of a loved one – do I need to wait for the Coroner’s inquest to finish first?
This isn’t essential but unless there are problems with limitation (see above) it is advisable to wait until after the inquest before taking a claim beyond the very early, investigatory stages. A hearing in the Coroner’s court is an extremely useful means of learning about what happened, in much more detail than would normally be possible, and your solicitor (if he/she also acts for you in the inquest) has the power to ask questions of the person who you believe provided you with negligent care.
Some people who believe the death arose from poor care can come to a different conclusion after sitting through the inquest, thereby avoiding the stress of later bringing a claim. Conversely, because of the inquest the hospital or GP may realise that the medical treatment cannot be defended and so may be keen to settle out of court early.
My injuries will be permanent – can you help me with rehabilitation?
One of the main purposes of bringing a legal claim where permanent injury has resulted is to obtain enough compensation to pay for any necessary care, equipment and rehabilitation in future. If you do not bring a claim, or if you do but are unsuccessful, there will be no compensation to fund these facilities but we strive to give our clients the best possible chance of winning damages to pay for rehabilitation. Furthermore, the experts we instruct to help put a value on this will often advise on the best place for an injured claimant to go, to access the most appropriate rehabilitation.