Clinical negligence

This section tells you what clinical negligence is. It explains the difference between a clinical negligence claim and making a complaint. There is also information about how you can get legal funding for claims.

Overview

  • Clinical negligence is when healthcare professionals physically or mentally hurt you because of the standard of health care they gave you.
  • Proving clinical negligence is difficult. You should get legal advice if you think you have a claim.
  • If you win a clinical negligence claim, you will only get financial compensation.
  • If you want an apology, or other outcome, you can think about making a formal complaint.
  • You have three years to make a clinical negligence claim. This is 3 years from when it happened, or 3 years from when you realised it happened.
  • You may be able to get legal funding to make a claim.
  • You may be able to make a claim if a family member died because of negligence.

About

What is clinical negligence?

Clinical negligence is when healthcare professionals physically or mentally hurt you because of the standard of health care they gave you.

Clinical negligence is proved using a 3-part test: The test looks at:

  1. that the doctor owed a duty of care to the patient,
  2. that the duty of care was breached, and
  3. as a direct result of the breach the patient suffered harm.

You can experience negligence from different medical people or teams. These can include:

  • an individual healthcare professional, such as a psychiatrist, or
  • a healthcare service, such as a mental health team.

Below are some examples of negligence.

  • Doctors didn’t notice symptoms of possible mental illness.
  • Your hospital discharged you too early which caused you harm.
  • Your mental health team didn’t give you the right treatment and this caused you harm.
  • Your doctor gave you the wrong medication which had a bad effect on you.

You can make a clinical negligence claim about both NHS and private treatment. Clinical negligence is also called ‘medical negligence’.

You may be able to make a claim if a family member has died because of negligence. You can claim:

  • bereavement damages of up to £12,980 if your husband, wife or unmarried child under 18 has died, and
  • for ‘loss of dependency’, if you were financially dependent on the person who has died.

NHS Resolution are a part of the department of Health and Social Care. They deal with clinical negligence claims. You can find their contact details in the Useful Contacts section at the bottom of this page.

What is the difference between clinical negligence and making a complaint?

When you make a clinical negligence claim you are asking for money to compensate you for harm, or injury, that you experienced. You will not get the following things:

  • an apology,
  • a change in practice, or
  • any action against a healthcare professional such as suspension or being dismissed from work.

If you want anything other than compensation you should consider making a formal complaint.

You can make a complaint and a clinical negligence claim at the same time.

You can find more information about ‘Complaints’ by clicking here.

How to claim

What are the time limits for making a claim?

There is a time limit if you want to make a clinical negligence claim. You must start the process:

  • within 3 years of when the negligence happened, or
  • within 3 years of the date that you realised that your injury was because of the treatment.

If you die within 3 years of when the negligence happened, then a clinical negligence claim can still be made. The claim must be made:

  • within 3 years of your death,
  • or within 3 years of your representative realising that your injury was because of the treatment.

You might have lacked mental capacity when the clinical negligence happened. When you gain the mental capacity to make a decision you have 3 years to make a claim.

You can find more information about ‘Mental capacity and mental illness’ by clicking here.

What if I think I have a clinical negligence claim?

If you think you have been the victim of clinical negligence, you should get legal advice. You can contact the medical accident charity, Actions Against Medical Accidents (AvMA). They can:

  • give you details of clinical negligence solicitors,
  • give you advice about your situation, and
  • talk to you about how much you might have to pay if your claim is not successful.

AvMA’s contact details can be found in the useful contacts section at the bottom of this page.

The Law Society can help you find a clinical negligence solicitor. Their details are in the useful contacts section at the bottom of this page.

The Law Society also have an accreditation scheme for clinical negligence solicitors. This is a scheme which can help you to find good clinical negligence. You can look on their website to find their list of solicitors who are accredited for clinical negligence. You can follow the link below to find out more about the scheme.

www.lawsociety.org.uk/for-the-public/using-a-solicitor/qualitymarks/clinical-negligence/

How do I make a claim?

There are rules about making a claim for clinical negligence. A solicitor has to do certain things before starting the claim. These rules are set out in the Civil Procedure Rules. You can find details in the further reading section at the bottom of this page.

These rules are summarised below.

  • You will need to request your medical records. When doing this you will have to notify the service of the incident. And of any possible safety concerns. Your request will need to state what records you want and any other relevant information.
  • If your solicitor thinks you have a good case, they have to send a letter of the claim to the NHS trust or healthcare provider. They have to send a copy of this letter to the NHS Litigation Authority. This letter will give information about your case. It will have details of your injuries and explain your financial loss because of the negligent treatment or care.
  • The healthcare provider will tell your solicitor they got the letter within 14 days. They will write back within 4 months.
  • You will not go to court until 4 months after your solicitor has sent the letter. A lot of clinical negligence cases are settled before you go to court. The healthcare provider, or you and your solicitor, can make an offer to settle. An offer to settle is when you are offered money to end the case.
  • If no one makes an offer to settle, or the offer is not accepted, then the case may go to court.

You should keep a record of:

  • how the treatment affected you,
  • any extra money you have had to spend because of it, or loss of earnings if you are unable to work, and
  • any pain and suffering you have experienced.

This can help you work out how much compensation to ask for.

Making a clinical negligence claim can be stressful and can take a long time. You may feel strongly about the poor care you experienced. But you should think about if you feel well enough to make a claim. Sometimes it can be useful to have a friend or family member to support you.

You can find more information about ‘Access to Medical Records’ by clicking here.

Fees and compensation

How can I pay to make a clinical negligence claim?

You will need to pay fees to make a clinical negligence claim. There are different ways you can pay.

Since April 2012 you cannot get legal aid for clinical negligence unless it is about a child that suffered a serious injury during birth. Legal aid means that the government pays for your legal advice if you can’t afford to pay it yourself.

Legal expenses insurance

You may be able to pay your solicitor fees through legal expenses insurance. Some other insurance policies, such as motor or household, include legal expenses insurance. You should check with your insurance company to see what types of claim it will cover. If you are a member of a trade union, you might have legal expenses insurance.

You might have to see a solicitor that your insurer chooses. If you aren’t happy with the solicitor you can ask the insurer if you can use your own.

Conditional fee agreements

These are 'no win, no fee' agreements. A conditional fee agreement is an agreement that your solicitor will not get paid unless you win the case.

If you win your case using a ‘no win no fee’ agreement, you will have to pay your solicitor’s fees with your compensation money. The fee can be up to 25% of your compensation.

If you lose your case, then you will not have to pay your solicitor. But you might have to pay the other side’s legal costs. You can take out an insurance policy called after the event insurance. This insurance will pay for the other side’s legal costs if you lose.

Private funding

If you cannot use any of the above options, you will have to pay the fees yourself. Clinical negligence cases can cost a lot of money. Legal fees can also cost a lot of money. You should talk about this with a solicitor before you decide to pay the costs yourself.

How much compensation could I get?

If you win you can get compensation. The amount you will get depends on different things, including the following.

  • How much pain or suffering you felt.
  • How much you earn and how much money you lost because of not being able to work.
  • How much you might earn in the future. The court works this out based on what you were earning in the past. Usually the higher your earnings, the more you will get.
  • Whether you have children or relatives who depend on you to support them financially.

You should ask a solicitor how much compensation you might get. A solicitor can give more information on how the above will be calculated. Knowing how much you might get is important if you are paying for your case yourself.

Useful contacts

NHS Resolution
NHS Resolution is an arm’s-length body of the Department of Health and Social Care. They provide expertise to the NHS on resolving concerns and disputes fairly.

Telephone: 020 7811 2700
Address: 2nd Floor, 151 Buckingham Palace Road, London, SW1W 9SZ
Email: via website
Website: www.resolution.nhs.uk

Action Against Medical Accidents (AvMA)
(AvMA) is a UK charity which gives free and confidential advice and support to people affected by medical accidents.

Telephone: 0845 123 23 52 (Monday to Friday, 10am until 3.30pm)
Address: Freedman House, Christopher Wren Yard, 117 High Street, Croydon, CR0 1QG
Website: www.avma.org.uk.

The Law Society
The Law Society represents solicitors in England and Wales.

Telephone: 020 7242 1222 (Monday to Friday from 09:00am to 5.00 pm)
Address: 113 Chancery Lane, London, WC2A 1PL
Website: www.lawsociety.org.uk

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