If you have received medical treatment in the UK either privately or through the NHS with an adverse or unexpected end result then you might be entitled to make a claim for compensation for your losses and injuries. Not all medical mistakes or adverse results are the fault of medical professionals, however, and so it is important that you receive proper advice from a solicitor about the law and how it applies to your case.
How do I know whether I can make a claim?
In order to bring a claim against the medical professional, 'the Defendant', you must show that the incident was their fault by proving that their care fell below an acceptable standard. Without fault on the Defendant's part there is no claim. Your solicitor will be able to advise you whether you have a claim on the individual circumstances of your case but first it is important that you follow the internal complaints procedure which the Defendant will have in place to deal with complaints about their medical care. Whilst this will not result in compensation for your injuries, if you do then go on to make a claim for compensation, the Court or Legal Aid Agency may be critical of your conduct in not pursuing this as a first step. You should note that any complaint must be made within 6 months of the date of the incident
If you have not already done so, you should immediately raise your concerns directly with the Defendant who might be able to resolve the matter to your satisfaction. If you still wish to make a complaint, you should then write to either the hospital or GP surgery setting out your concerns and where you feel the Defendant has fallen below an acceptable standard of care. This will trigger an internal investigation. We can help you with this stage.
Making a claim
Once you have a response to your complaint, you will then need to explore with your solicitor whether you have a claim for compensation based on the negligence of the Defendant.
Proving Negligence (fault)
The law of negligence relating to medical accidents can be very complicated and bringing a successful claim relies to a great extent upon favourable medical evidence. You will need to obtain evidence from an independent medical expert, who works in the same field as the Defendant, confirming that in their opinion the Defendant's care fell below an acceptable standard and that as a result of that failure you suffered the adverse result. So you would not have a claim where, for example:
- the adverse result was a recognised risk of the treatment (and you were advised of that risk)
- the adverse result was as a result of your original illness or condition and not as a result of the treatment; and
- even where the evidence shows that the Defendant's care fell below a reasonable standard, the adverse result would probably have occurred anyway.
If your solicitor thinks you have a good chance of succeeding in bringing a claim, they will write a formal letter of claim to the Defendant, setting out the circumstances of your claim. There is a legal protocol which must be followed to give the Defendant time to investigate and respond to the formal claim.
At the outset of your claim your solicitor will need to obtain all your medical records in order to give these to your medical expert.
Proving your losses
If liability is admitted by the Defendant, you will then have to prove your losses. Your losses include 'General Damages' which is the compensation you will receive for the pain and suffering you have sustained and also 'Special Damages' which are your out of pocket expenses. In order to quantify these losses your solicitor will need a range of evidence including expert medical evidence in relation to General Damages and documentary evidence in relation to Special Damages.
- The usual types of special damages include:
- - Loss of earnings
- - Medical treatment expenses
- - If you are unable to look after yourself, the cost of care
- - Costs of any alterations to your accommodation
You can also claim for any future damages which might arise, for example, if your loss of earnings is continuing, or the cost of future treatment.
If liability is disputed by the Defendant, proceedings will be issued and you will probably have to go to trial and the Judge at trial will have to decide whether your case is proved.
How much is my claim worth?
Your solicitor will only be able to value your claim once all the medical evidence is complete and once you have provided all the documentary evidence for your Special Damages.
The value of the claim for your injuries is calculated by referring to previous similar cases which have been decided by the Court, as well as the Judicial College Guidelines, which is a reference tool providing a rough tariff of awards for particular types of injuries.
Your past expenses and potential future expenses and losses will also be calculated by your solicitor and usually presented to the Defendant in a schedule. In complex cases these calculations might be referred to an accountant or a barrister.
How much time do I have to bring a claim?
In most cases, you have 3 years from the date you first knew that you might have a claim because of the Defendant's fault. If the medical accident happened to a child, then the three year time limit runs from their 18th birthday. It is always best to seek advice as soon as possible after you realise you might have a claim.
Paying for your Claim
When you instruct a solicitor to act for you, it is usual practice for you to come to some arrangement about their fees to confirm how they will be paid. You might have already paid for some insurance which covers your legal costs, you might be eligible for legal aid, or you might want to enter into a 'no win, no fee' agreement. Your solicitor will advise you on your options.
How we can help
If you need advice about a medical accident and whether you can bring a claim, then please contact a member of our Clinical Negligence team.
For information of users: This material is published for the information of clients. It provides only an overview of the regulations in force at the date of publication, and no action should be taken without consulting the detailed legislation or seeking professional advice. Therefore no responsibility for loss occasioned by any person acting or refraining from action as a result of the material can be accepted by the authors or the firm.