Opinion

Simple guide to Clinical Negligence claims

20th May 2019

Simple guide to Clinical Negligence claims

Every year, people who have been injured or affected by medical treatment find themselves in need of expert guidance and advice. Our FAQ’s on Clinical Negligence claims offer an overview of what can be expected.

How long do I have to make a clinical negligence claim?

Generally, you have 3 years from the date of negligence to issue court Proceedings.

How do I win a clinical negligence claim?

To win your claim you must prove breach of duty, causation and damage. If you cannot prove all of these elements your claim will fail.  

  • Breach of Duty - You must prove that the medical care you received fell below an acceptable standard
  • Causation - You must prove that the unacceptable medical care caused or materially contributed to your injury or additional pain and suffering
  • Damage – Compensation is assessed by reference to the nature and extent of the injury you have suffered.

The Court is unlikely to allow legal costs of investigating a claim to exceed the damages awarded. This is known as the ‘Proportionality Test’.  Throughout your claim, we will need to bear in mind the ‘Proportionality Test’ when determining what steps we can take to investigate your claim to ensure that costs are not disproportionate.

What will my solicitor do?

  • Obtain your medical records
  • Review your records
  • Take a statement from you and others including family members
  • Consider instructing an independent medical expert to prepare a report as to whether the care you received fell below an acceptable standard
  • Consider instructing an independent medical expert to prepare a report as to whether the unacceptable medical care caused or materially contributed to your injury or additional pain and suffering
  • Consider instructing an independent medical expert to examine you and provide a report regarding your injuries and your prognosis
  • Prepare a Schedule of your financial losses
  • Submit a Letter of Claim to the opponent(s).

How long will my claim take?

Each claim is different.  It takes between 12-18 months to investigate whether a claim for clinical negligence can be pursued. Even if liability is established, clinical negligence claims can take several years.

Once your medical records have been obtained, your Higgs & Sons solicitor will collate expert medical evidence. 

  1. If the Expert’s report identifies negligence, we will send a Letter of Claim on your behalf detailing the negligence and injuries. 
  1. If the report does not identify negligence, we will reassess whether we can continue to fund the claim on a ‘No Win, No Fee’ basis and the claim may end. 
  1. If we do have a case on the basis of the independent medical expert opinion and the Letter of Claim is sent, the Defendant has 4 months to admit or deny liability. 
  1. If they admit liability, we can move on to obtain ‘Condition & Prognosis’ evidence on your injuries and to value the claim with a view to advising you on making a settlement offer to the Defendant. 
  1. If they deny liability, we will reassess prospects of success if prospects have fallen the claim may end. 
  1. If the Defendant admits liability but is only prepared to make a low offer (when the claim is likely to be worth more – we do not know at this stage as it is too early in the process) we would advise you to proceed to Court for a Judge to decide the value. 
  1. If the Defendant denies liability, but we have supportive expert evidence, we would advise you to proceed to Court for a Judge to decide whether the Defendant was negligent or not.  

Please note that at each stage of the case we will re-assess the likely prospects of success. If at any time prospects fall below 65% we may not be able to proceed any further with the case.

How much compensation will I receive?

If your clinical negligence claim is successful you can claim for the pain and suffering caused to you as a result of the injuries as well as for financial expenses such as: 

  • loss of earnings for the past and future
  • care and assistance required from friends or family with household tasks DIY or gardening etc
  • medical care and treatment
  • adaptations or special equipment for your house or car

Court proceedings

Should liability be disputed or it is not possible to agree a settlement, your solicitor will recommend court proceedings - provided this is a reasonable step bearing in mind the prospects of success.  We will also conduct the litigation for you.

Keeping you informed

When it comes to your claim, we want you to be confident that the case is progressing as expected.  We will always endeavour to let you know when delays occur and the reason for them. We will also advise the outcome of your claim at which point our agreement with you will come to an end.

What should you do?

You should be wholly honest in all aspects of your claim.  This applies to how you say the clinical negligence happened as well as the extent of your injuries and losses.  Opponents actively identify dishonest claims through various means, including reviewing social media and personal surveillance. 

Fundamental Dishonesty

If your claim goes to Court and the judge finds that you are entitled to compensation, the Defendant can still ask the judge to decide whether you have been fundamentally dishonest in your claim.

If a judge were to find on balance that you have been fundamentally dishonest, they must dismiss your entire claim unless you would suffer substantial injustice.  The law intends for dismissal to be the usual outcome.

What is fundamental dishonesty?

It includes fraud where a claim was falsified. It may also include gross exaggeration of an injury or loss. In addition to dismissing a claim, a judge can impose criminal sanctions for Contempt of Court.

Costs implications

If a judge were to dismiss your claim they would also order you to pay the opponent’s costs, less any compensation you would otherwise have been awarded.  In addition, you would have to pay your solicitor’s costs and disbursements. All of these would have to be paid personally, as any legal expense insurance would be void.

 

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