Clinical negligence
Negligence may occur from delay or failure to diagnose a condition, delay or failure to treat a condition, when a treatment goes wrong, use of the wrong treatment, or failure to obtain consent. Professionals covered by clinical negligence include:
- GP's
- NHS or privately funded hospitals
- Privately funded health practitioners
- Other health professionals, for example, nurses, occupational therapists
- Dentists
- Defective medical products (for example, implants or drugs)
How do I find out if I have a case?
If you think that a health professional has been negligent in your care or the care of a relative you will need to contact a solicitor with experience in this field. The Rethink National Advice Service can put you in touch with a suitable solicitor in your area.
The solicitor will listen to the information you give him/her and assess whether s/he thinks that they can help. You may have to pay for this initial interview. The solicitor may decide to take it to court with a view to obtaining compensation. However, compensation may only be substantial in certain circumstances and another option that may be put to you is mediation. In mediation, you may be offered an explanation and an apology for any negligence that took place and you may have to opportunity to influence better policies reducing the likelihood of it happening again to someone else.
What is the difference between clinical negligence and making a complaint?
In a clinical negligence case you are asking for money to compensate you for an injury or illness you experienced. You are unlikely to receive any compensation through a complaint but you may receive answers to why your diagnosis or treatment was inadequate, receive an apology and perhaps prevent it from happening again in the future. You cannot at the moment take out a clinical negligence case while you have an ongoing NHS complaint.
How soon do I have to make a claim?
If you wish to start a clinical negligence case, you must start proceedings within three years from the time when the negligence occurred or three years from the date that you realised that the treatment had caused significant injury. Different time limits apply to children, people with learning difficulties and sometimes people with mental health problems and the time limit is open to debate. In certain circumstances, a claim may be allowed to go ahead even if time has run out.
What is below standard care? - the true test for establishing negligence in diagnosis or treatment is defined in legal terms as “Whether the health professional has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care.” This means that the doctor or nurse is expected to provide care that any other doctor would provide, that is the minimum standard for care and treatment.
Funding for clinical negligence
To take a clinical negligence case to court, you will need funding. The funds are needed to pay for consultations and advice from a solicitor, any further work they undertake on your case and, if decided upon, representation in court. Here are four main sources of funding:
- Legal Services Commission
(Formerly Legal Aid). The funding provided by the Legal Services Commission is a means tested benefit that means the level of funds provided, if any, depends on the amount of savings you have and your income. The more money you have, the less likely you are to receive funding. If you qualify for funding from the Legal Services Commission and you win in court, resulting in you being awarded a sum of money, the solicitor must use this to pay his/her bill. This is called the statutory charge. You may be refused this help if the likely damages (that is what you are paid out at the end) are less than the likely cost of pursuing the case.
- Legal expenses insurance
If you are unable to claim funding from the Legal Services Commission you may be able to pay the cost of a solicitor through legal expenses insurance. Legal expenses insurance covers the cost of legal proceedings. Often motor insurance and household contents insurance or union membership have legal expenses insurance attached to them. It can cover up to £50,000.
You should check any policy carefully for details of the types of claim it will cover and the limitations on it. Before court proceedings start you may be obliged to use a solicitor of the insurer’s own choice. However, if you are unhappy with their choice, don't hesitate in raising the matter with the insurer - they may be prepared to allow you to use your own solicitor.
- Conditional fee agreements
Often known as 'no win, no fee' agreements, this is an agreement between you and your solicitor. The solicitor will not get paid unless you win the case. If you win, the solicitor is usually entitled to an additional 'success fee'. Both the basic fee and this extra fee are normally paid in whole or part by the losing party. There are other costs (such as court fees or the fee for the medical report) and the losing party should pay all or part of these. You are liable to pay your solicitor for any costs that the losing party is not ordered to pay.
If your claim fails you will not have to pay your own solicitor, but you will still probably have to pay the costs of the successful party - the other side. Also you will usually have to pay for any other incurred costs (such as court fees or the fee for a medical report). However, your solicitor will normally be able to arrange insurance to cover this risk. This is known as 'after the event' insurance. You will have to pay the insurance premium.
- Private funding
If none of the above options are available to you and you still wish to take your case to court, you will have to pay for the costs with your own money. Clinical negligence cases can be expensive and solicitor’s fees alone can be many thousands of pounds. You should discuss this fully with a solicitor and they should help you weigh up the possibility of your being paid out compensation with how expensive solicitor’s fees will be and the financial consequences if you lose the case.
