Making a medical negligence claim

Try to speak to a few law firms before choosing. They should give you a free initial consultation.  

Choosing a clinical negligence solicitor

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's likely they will be eligible for Legal Aid funding. The child is the claimant and it is their means which are assessed, not the parents'.

Check if you can get Legal Aid (GOV.UK)

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.

Funding a claim

Your solicitor can explain the options for funding the initial investigation and potential claim. Make sure:

  • you ask your solicitor about your eligibility for Legal Aid funding as soon as possible
  • your solicitor can help you apply
  • you know how the firm will charge you fees
  • 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

There are 2 stages to funding:

  1. The initial costs of obtaining medical records, seeking expert reports and gaining a barrister’s opinion if necessary.
  2. 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

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.

Once funding is in place, your solicitor will get all relevant medical notes and records.

Preparing a report

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.

Independent medical experts will use these medical records and your statement to your solicitor to prepare a report. This can take a long time. The report will either support the claim or say that it is not sustainable.

If the report supports 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 issues:

  • Whether the standard of medical care was below the expected standards and medical knowledge at the time of the alleged incident. This is called breach of duty.
  • The link between the breach of duty and the impairment. Did the medical staff’s failures in care contribute significantly to the impairment? This is called causation.
  • The amount of compensation based on meeting the needs of the injured person. This is called quantum.

How long does a negligence claim take?

Making a claim can take years. Reasons for this can include:

  • availability of experts to report
  • the court timetable
  • the need to understand a person's future needs before the court can make a final decision

Ask your solicitor for regular updates.

How long do you have to bring a claim?

Your solicitor should be able to tell you at your first meeting the time limits for bringing a claim. Normally you have 3 years from the alleged injury or when you became aware of the injury (such as noticing developmental delay). 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.

But it's best to start an investigation as soon as you can, while things are likely to be clearer in your mind.

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. Many cases are settled out of court, even when the court proceedings have begun.

A split trial

Sometimes the trial will be split. Firstly, the court will consider liability for breach of duty and causation. If liability is admitted or proved, the level of compensation will be considered at a later stage. The reasons for this may be:

  • It's inappropriate to decide the total amount of compensation if a child is still developing. The court needs an accurate picture of their future needs and prognosis.
  • The defendants will not voluntarily admit liability. The court will not decide the level of compensation until this has been confirmed.
  • If a split trial on liability is successful, interim 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

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