Medical Negligence FAQs.

In order to be successful in any claim for Medical Negligence, you must satisfy a two-stage legal test.

The first stage of the test is referred to as ‘Breach of Duty’ and requires that you demonstrate that the care provided was negligent. To do so, you must show that no reasonable body of medical practitioners would consider that the care provided was appropriate or reasonable. Whilst a Doctor or Nurse being rude to patients can often feel inappropriate, this does not constitute negligent care.

The second stage of the test is referred to as ‘Causation’ and means that the Breach of Duty has caused you to suffer some loss or injury that would have been avoided with appropriate care.

It is not possible to only satisfy one element of the test i.e. if you receive negligent care but your outcome was ultimately the same, then a claim for Medical Negligence would not be successful.

If you consider that you have a Medical Negligence claim, we can help you to investigate this by arranging for independent medical experts to review your medical records and comment on the standard of care you received.

Medical Negligence claims are inherently complex, with both medical and legal issues arising. As such, they often take longer than other claims for personal injuries. No two claims are the same, and the level and complexity of injury suffered can impact upon the length of time required to investigate a claim.

Typically, it will take at least 12 – 18 months for us to investigate your claim, and while some claims may settle within this time frame, cases can often last up to 3 or 4 years. The most complex claims involving child brain injuries can take far longer than this, as sometimes it is necessary to wait and see how the child develops through childhood and adolescence before the claim can be settled.

The law provides that any claim for Medical Negligence must be commenced at Court within three years of the date of the negligence, however there are some exceptions to this rule.

• Knowledge – where someone has received negligent treatment, but was unaware of it at the time, the three year period will not commence until the date on which they had reason to suspect that they received negligent treatment. This will often be the case in delay in diagnosis claims, where a patient is initially reassured by their Doctor, only to find out later that the diagnosis was incorrect.
• Children – children under the age of 18 years are not able to bring a claim on their own behalf. Whilst the claim can be brought for them by a Litigation Friend before this time, the three year time limit will not start until their 18th birthday. This means that a child who is the victim of Medical Negligence will have until their 21st birthday to bring a claim.
• Capacity – where an adult lacks sufficient mental capacity, they may be considered to be unable to bring a claim in their own right. In these circumstances, the three year time limit will not apply. Should the person later regain mental capacity, then the three year period will commence, and they will have three years from the date they regained capacity to bring a claim. Mental capacity is complex and requires confirmation from a Doctor.
• Death – where a person who has received negligent treatment dies within the three year period, the time will reset, and the Representative of their Estate will have three years from the date of their death within which the claim must be brought.

If a person has received negligent treatment and they subsequently pass away, a claim can be brought on behalf of their Estate. The claim must usually be brought by the Personal Representative(s) of their Estate. A Personal Representative will be either the Executor(s) appointed in the person’s Will, or the Administrators appointed by the Court where the person died intestate (without leaving a valid Will).

Where the person died as a result of the negligent treatment, a claim may be made on behalf of anyone who was dependent upon the Deceased, whether financially or for services/care. The Personal Representative of the Estate should ensure that all Dependants are considered and compensated through the claim, as only one claim may be brought on behalf of the Deceased.

Where the Personal Representative does not wish to bring a claim on behalf of the Estate, the Dependants may be able to bring a claim in their own right for the loss they have sustained as a result of the death.

A claim will normally need to be brought by the person who was injured in their own right, however if they do not have capacity to bring a claim themselves or they are under the age of 18, they cannot do this. A claim will therefore need to be brought on their behalf by a Litigation Friend.

A Litigation Friend is usually a close relative, such as a parent or spouse, who will provide instructions in relation to the claim. A Litigation Friend does not necessarily need to be a relative; the only requirement is that they are able to act in the best interests of the person they are acting for.

Any settlement agreed in the claim will also need to be approved by the Court. This is simply a formal exercise to ensure that those who cannot choose their own settlements are sufficiently compensated for their injuries.

All organisations who provide care and treatment will have complaints procedures in place. Sometimes this can be a helpful way for you to find out what went wrong in your care without the need to instruct Solicitors. However, this process will not result in any financial compensation for your injuries.

If you have made a complaint then this does not prevent you from starting a Medical Negligence claim, even if you have not received a response from the other side, and similarly it is not necessary for you to have made a complaint before you can start a claim. We will undertake the necessary investigations to get the answers you deserve without the need to go through the formal complaints process.

The value of a claim is calculated by investigating the following three areas of loss:

1. Pain, Suffering and Loss of Amenity (PSLA) – everyone who suffers an injury as a result of negligence is entitled to general damages to compensate them for the pain and suffering they have endured. This is calculated with reference to the Judicial College Guidelines; a Court resource prepared to assist lawyers and Judges by setting out the level of compensation awarded in previous cases. By considering the Guidelines, it is possible to provide an estimate of the value of an injury based upon similar awards. The more serious the injury, the higher the award.
2. Past Financial Losses – where losses and expenses have been incurred as a result of negligence, these can be reclaimed from the Defendant. This may include travel expenses to unnecessary medical appointments, loss of earnings due to being unable to work, or the cost of care and help around the house. Where care and support has been provided by a relative or friend, it is also possible to recover compensation to reflect the time that they have spent.
3. Future Financial Losses – where it is likely that losses will be incurred after the conclusion of the claim, for instance if care will be required in the future, or you need additional medical treatment, the costs of these can be recovered from the Defendant.

Given that each of the heads of loss will vary on a case by case basis, it is not possible to estimate the amount of damages anyone will receive from a successful claim.

Most Medical Negligence claims will be pursued using a Conditional Fee Agreement (CFA), commonly referred to as a No Win No Fee Agreement. The basic principle of a CFA is that you are not required to pay any legal costs at the outset or whilst the claim is ongoing. If the claim is ultimately unsuccessful, and no compensation is recovered, then you do not need to pay any costs. There is therefore no financial risk to pursuing a claim in this way.

If the case is successful, then you will be required to pay a portion of the legal costs out of any damages awarded. The amount of costs payable will vary depending upon the amount of work required to investigate the claim, however FBC Manby Bowdler guarantee that you will also keep at least 65% of your compensation, although in most cases you will keep significantly more than this. The amount of costs payable will be different, and may be higher, if you chose to instruct alternative Solicitors to progress your claim.

Some people may have the benefit of pre-existing insurance, often through legal protection added on to home insurance policies, which will fund the investigations into a Medical Negligence claim. If you consider that you may have the benefit of such a policy, it is worth looking into, as it may mean that you get to keep 100% of the compensation you are awarded, as your insurer will cover the legal costs payable. Using legal protection does not usually affect your policy premiums, however you should confirm this with your insurer.

In order to ensure that all cases have an end point, to stop them rolling on for years unnecessarily, at a certain stage in investigations the Court will list a Trial date. This will often be several months in advance, in order to allow continued investigations and negotiations.

In most cases, settlement will be agreed before the Trial takes place and it will not go ahead. It is therefore highly unlikely that you will need to attend a Trial if you bring a Medical Negligence claim, however it cannot be guaranteed and will be depending upon other factors such as how the Defendant responds to the claim.

If you bring a successful claim for Medical Negligence, you are entitled to compensation. Any compensation paid by the NHS will not come from the governmental budget which affects the supply of healthcare around the country. A separate budget is set each year for Medical Negligence claims, which has no impact upon healthcare.

Your claim will therefore not have a financial impact upon the NHS, however by allowing the NHS to investigate failings in treatment, this may allow them to identify key issues and put steps in place to ensure that avoidable errors are not repeated. It is therefore possible that bringing a claim will help to raise awareness and avoid future mistakes.

A Medical Negligence claim can be brought against any medical practitioner or organisation who has provided negligent care. This includes Doctors and Surgeons in Private Hospitals, GPs, Carers, Therapists etc.

You may also be entitled to recover the cost of additional treatment which was paid for privately if this would not have been required but for the negligent care you received.

Any claim for Medical Negligence is not automatically made available to the press. Whilst you may have seen stories on the news about individuals who have been the victim of negligence, those individuals have provided their specific consent to their story being published. If you do not want your claim or story to be circulated in the press then this will not automatically happen. However, if you do wish to share your story to raise awareness, then this is something we will be able to assist you with. It may be that we ask that you refrain from doing any press until a certain stage in the claim, but this is something we can advise on further.