Making a medical negligence claim
Make sure you do thorough research and speak to a few law firms before choosing. They should give you a free initial consultation. Your solicitor can explain the options for funding the initial investigation and potential claim.
Once funding is in place, your solicitor will get all relevant medical notes and records.
Getting a report
Independent medical experts will use these notes and records, and a statement you give your solicitor, to prepare a report. Those expert reports will either support the claim or say that a claim is not sustainable.
If the reports support a claim, the next stage is to assess its value, using further expert reports from therapists and professionals.
By this point, your solicitor will have a view about:
- whether clinical negligence caused disability
- and the possible amount of compensation
Your clinical negligence action
This will look at 3 distinct issues:
- Breach of duty – whether the standard of medical care was below the expected standards and medical knowledge at the time of the alleged incident.
- Causation – the link between the breach of duty and the impairment. Did the medical staff’s failures in care contribute significantly to the impairment?
- Quantum – the amount of compensation based on meeting the needs of the injured person.
Claiming on behalf of a child
If you are pursuing a claim on behalf of a child, who has suffered a neurological injury at birth or up to 8 weeks old, it is likely they will be eligible for Legal Aid Agency funding. Funding a claim is subject to 2 criteria: merit and means. The Commission must be satisfied that reasonable grounds exist for starting an investigation and, where appropriate, progressing the matter through to a full claim. The financial circumstances of the child are what is relevant. The child is the claimant and it is their means which are assessed, not the parents'.
How long does a negligence claim take?
Making a claim can be a long process. It depends on many things that your solicitor cannot control. These include the availability of experts to report and, where a claim goes to trial, the court timetable. It is inappropriate to conclude an action in negligence until there is a prognosis and detailed understanding of how future needs can be met.
How long do you have to bring a claim?
Your solicitor should be able to tell you at your first meeting on the time limits for bringing a claim. Normally you have 3 years from the alleged injury or date of knowledge of the injury. For a child, the 3 years does not start until age 18, so you may have up to 21 years to bring a claim if the injury happened at birth.
If the injured person has a significant intellectual impairment, whether or not from the injury, the limit of 3 years will not apply. So it's worth enquiring, even if the person is over 21.
It's best to start an investigation as early as possible, while things are likely to be clearer in your mind.
Funding a claim
- Ask your solicitor about your eligibility for Legal Aid funding as soon as possible.
- Be sure that your solicitor can help you apply.
- Make sure you know how the firm will charge you fees.
- Ensure you know what the total costs are likely to be of
- pursuing an investigation
- and, if appropriate, a full claim
Many firms will offer a Conditional Fee Agreement (CFA). This should ensure there is no financial risk to you if your claim is unsuccessful.
In complex cases, some firms will not apply for funding until they have assessed the medical notes and records. In such cases the firm should fund the production of those records.
Stages to funding
- The initial costs of obtaining medical records, seeking expert reports and gaining a barrister’s opinion if necessary.
- The costs of the various stages leading up to and including a trial if the barrister thinks the investigation should proceed to a claim.
Get a client care letter
In any event, you should receive a 'client care' letter. This will set out the fee structure and the firm’s procedures. If at any stage you feel unsure about how your case is being paid for or how much the bill is, ask your solicitor for an update. Your solicitor is required to update you at regular intervals.
Mental capacity and litigation friends
To bring a legal claim in their own name, a person must have the necessary mental capacity. If they lack that capacity, another person can bring a claim on their behalf. This person is known as a 'litigation friend'. A child will need a litigation friend to bring a claim on their behalf. This will usually be one of their parents.
The litigation friend will choose and instruct the solicitor, acting in the injured person’s best interests. It is the injured person’s means that will determine whether they qualify for Legal Aid. If they do not, their legal costs will come from their funds, not those of the litigation friend.
When do you need evidence?
Once you have agreed the source of funding, your solicitor will request copies of all the medical notes and records from the hospital and your GP.
These are both obstetric (to do with the mother) and paediatric (to do with the child). Your solicitor will check to ensure that the records are complete and in proper order. She will instruct one or more independent expert witness to prepare reports. Records remain confidential between these people.
Obtaining expert reports
In a birth injury case, the independent experts will usually include:
- an obstetrician
- a paediatrician
- and other experts such as a midwife, paediatric neurologist or neuro-radiologist
It's essential the solicitor identifies appropriate experts at an early stage.
If the experts report that the medical treatment was to an acceptable standard, there can be no claim. If they report that the medical treatment was sub-standard and so there was a 'breach of duty', matters can move forward.
Your solicitor should explain the reports to you in a meeting with a barrister and the experts. They will let you know whether they think you have a case and answer any of your questions.
Letter of Claim
If the reports support a claim, your solicitor will write a letter to the defendant (the person or body against whom you are claiming). This will include details of any likely allegations and the approximate compensation sought so as to identify the nature and extent of the claim. The defendant will have 4 months to respond to this letter. This response may indicate the likely outcome of legal proceedings and possibly an early admission of liability.
If the defendant admits liability early on, it will avoid the need for a trial on that issue. Many cases are settled out of court, even when the court proceedings have begun.
A split trial
Sometimes the trial will be split. Firstly, liability for breach of duty and causation will be considered. If liability is admitted or proved, the level of compensation will be considered at a later stage. The reasons for this may be:
- It is inappropriate to decide the total amount of compensation if the case relates to a child who is still developing and future needs and prognosis cannot be accurately assessed.
- Despite the evidence, the defendants will not voluntarily admit liability and it is seen as a waste of legal costs to investigate the level of compensation before the right to them is ascertained.
- If a split trial on liability is successful, an interim payment on account of compensation can be awarded to meet an injured person’s needs whilst the full value of the claim is investigated.
An advantage of a split trial is that it gives certainty as to the eventual outcome.
Last reviewed by Scope on: 31/05/2019