Medical Negligence
What is medical negligence?
Medical negligence is the breach of a legal duty of care owed to a person by their healthcare provider which causes or materially contributes to injury and loss.
A claim for medical negligence will only succeed if you can prove, with the benefit of independent expert evidence, that the actions or omissions of the healthcare provider would not have been approved of by a responsible body of opinion in that discipline at that time.
If a medical negligence claim is to lead to an award of compensation, you must prove, again with the benefit of independent expert evidence, that the negligence caused or materially contributed to the injury and loss that has been sustained.
What financial
compensation can I claim?
The only remedy that a court can award for a successful medical negligence claim is financial compensation. Compensation is intended to put a claimant in the same position that they would have been if the negligence had not occurred.
Compensation will only be awarded for injury and loss that was a reasonably foreseeable consequence of the negligence.
A successful claimant is usually entitled to both general damages and special damages.
General damages are compensation for the pain, suffering and loss of amenity caused by the negligence. This can include considerations such as the physical injury, any psychological injury, a loss of life expectation, a loss of enjoyment of day-to-day life and activities, and any disadvantage on the open labour market linked to injuries caused by the negligence.
Special damages are compensation for your out-of-pocket expenses from the date of the medical accident up to the date of settlement or trial. In serious injury claims, meaning those involving significant injuries having long term impact, it is possible to claim special damages for future needs. This head of loss can include compensation for past and future loss of earnings and pension entitlement, care and assistance requirements, treatment costs, accommodation needs, and the costs of aids and equipment.
In fatal accident claims, meaning claims where the victim of medical negligence has died, the personal representative of the deceased’s estate can claim the compensation that the deceased would have claimed had they lived. This can include the statutory bereavement award of £15,120, funeral and memorial costs, and claims for lost dependency on the deceased’s income and services.
Our specialist medical negligence team will provide you with advice on what heads of loss you can claim compensation for as part of their investigation of your case.
What are the time limits for bringing a medical negligence claim?
A medical negligence claim must be started in court within three years of the date of the medical accident. This starts from the date of the relevant treatment or, if the victim was unaware that they had been injured through negligence, the date on which the claimant had knowledge of facts sufficient to bring a claim.
If the victim dies before the expiry of the three-year limitation period, the proceedings must be started in court within three years of the date of death.
If the victim is a child, the three-year period begins on their 18th birthday.
If the victim lacks capacity, the three-year period begins when they either regain capacity or die.
The time limits are strict, and it is therefore essential that anyone interested in exploring a medical negligence claim obtains specialist independent legal advice as soon as possible. This is because the failure to issue the claim in court, or agree an extension with the correct defendant, before the expiry of the limitation period will mean that the claim becomes statute barred and no further action can be taken in relation to it.
How are medical negligence claims funded?
The vast majority of medical negligence claims are funded by conditional fee agreements, which are also known as no-win, no-fee agreements, and supported by a type of insurance policy called after the event legal expenses indemnity insurance.
If your claim succeeds, we will charge you a success fee which must be deducted from your compensation because it cannot be claimed from the defendant. The success fee is capped at 25% of the compensation that you recover for general damages and past special damages. The success fee does not attach to any compensation recovered for your future special damages. In addition to the success fee, you will contribute towards the cost of the insurance premium.
If your claim fails or is discontinued, the conditional fee agreement and insurance policy take effect, and you will not have to pay our charges.
Other possible funding options for your claim may include a private retainer, pre-existing legal expenses insurance, trade union indemnity or public funding.
Our specialist medical negligence team will provide you with advice on the funding options for your claim and ensure that the most appropriate funding method is applied to your claim.
