Last updated on February 9th, 2016 at 11:05 am
Breach of duty
As a patient, you are owed a duty of care by health care providers. To prove breach of that duty we have to show that a mistake was made in the care you were given (or not given).
This is not the same as the care you receive not being what you expected or not being successful.
The key to establishing breach of duty is determining whether a health care provider has acted according to accepted medical practice. We must show that the wrong course of action was taken during your care.
Once we have identified that a mistake was made and that it was negligent, we then have to show that the mistake was the cause of the injury. We will get expert witnesses to look at your claim and prove evidence of a causative link between the negligent treatment and your injury.
We will obtain medical evidence about the effect that the negligence has had on your health and how this will affect you in the future. We will quantify your losses by looking at several factors including your loss of earnings, expenses incurred as a result of the negligence and future implications, which might include ongoing losses or the need for care or further medical treatment.
Medical negligence claims are complex and can be difficult to prove. No two cases are the same. Some will have a clear breach of duty, but proving the causation element may be difficult. We will look at each case individually and advise the best way forward for you. Our expertise will give you the best possible chance of success.
Will I have to go to court?
The vast majority of claims do not get as far as a trial. In most cases a settlement is negotiated and damages are paid prior to going to court.
What if someone has died?
If a family member has died you may be able to make a claim depending on your relationship to the deceased. Only one action can be brought so it will often be on behalf of a number of people, for instance a surviving wife and children together.
In a case where someone has died, as in other cases, we have to prove breach of duty and causation, so much of the process of making such a claim is similar.
There is a statutory award for bereavement of £12,980 (for deaths on or after 1.4.13). You may also be able to claim for other things such as loss of dependency if you were financially dependent on the person who has died. The amount of these damages will depend on the age of the person and their future earnings potential, as well as other factors.
What if I just want an explanation and an apology?
You may not be seeking compensation but want an apology for the mistake that was made and an explanation about why it happened.
The NHS has a complaints procedure which can be used to try to get an explanation about what went wrong, and possibly an apology.
If you want to pursue this course of action we may still be able to help you.
How long do I have to make a claim?
If you think you may have a medical negligence claim you should contact us as early as possible as there are time limits for bringing a claim.
In general, we need to start court proceedings within 3 years of the date of your treatment or injury. In cases where you don’t know initially that you have suffered an injury, you have 3 years from the ‘date of knowledge’ of the injury.
The 3 year limit doesn’t apply to children until they reach their 18th birthday. However, you don’t have to wait to take action, as a parent or other adult can make a claim on behalf of a child.
In certain circumstances, where someone doesn’t have the mental capacity to decide for themselves about making a claim, no time limit applies.
The rules stated above are general guidelines, but if you feel that you may have a claim please contact us and we may still be able to help you. It is always best to act promptly.
How long will my claim take?
The length of time a claim takes depends on a number of factors:
- The volume and complexity of your medical case notes. We need to get these from the various health care providers, organise them and understand them before we can proceed.
- The nature of your injury, which may dictate the number of medical specialisms involved. Obtaining evidence from medical experts in different fields can take time.
- Investigating your claim to the point where we feel we have strong evidence on breach of duty and causation. This may take around 12 months.
- If we’re unable to negotiate a settlement of your claim we can represent you in court proceedings. It can take around 18 months to complete to settlement or trial.
- Other factors such as the attitude of the health care providers and their solicitors can also affect the time taken to process a claim.
No two cases are the same and the timescales mentioned above are general guidelines. Straightforward claims may be settled quickly, whereas more complex ones can take longer.
How Much Will it Cost?
There are a number of ways of funding legal fees for a medical negligence claim.
Legal expenses insurance
This is often included with general insurance policies such as home insurance. It may also be one of the benefits attached to your credit card. You may already have this type of cover and it is often suitable for funding a claim, so please ask our medical negligence experts in the first instance.
Legal Aid (Public Funding)
This might be available in some cases. We will assess availability and your financial eligibility.
No win – No fee
This is the commonly used name for a “conditional-fee agreement”. Under this type of agreement we’d take on your claim on the understanding that if you lose, we will not get paid.
What else do you need to know about your medical negligence claim?
Please contact us for more information or to make an appointment for a consultation.