If I’ve suffered an injury due to mistakes made during medical treatment, how will I know whether I’m eligible to make a claim?
Medical negligence is caused by unacceptable clinical treatment, resulting in unnecessary illness, injury or death. Health care providers have a duty to provide acceptable levels of care and treatment to their patients. Failure to do so may result in a patient being able to bring a compensation claim. However, if you are ever unsure whether you are eligible, the majority of law firms will be able to provide you with free initial advice to discuss your claim.
If I think I am eligible, what steps will I have to take to make my claim?
If you are eligible for making a medical negligence claim, your lawyer will provide advice on the steps that need to be taken. Investigation of medical negligence claims require detailed medical evidence so that your claim can be defined to both the solicitors representing you and the lawyers defending the case. You will be required to give a statement and expert medical evidence will be provided by specialist medico -legal experts, who will need to examine you as well as the circumstances that led to the injury. Provided the expert evidence supports your claim, a formal Letter of Claim will be sent to the Defendant. They then have four months to investigate and provide a formal Letter of Response, following which they can either admit liability and so settle your claim, or deny liability giving reasons for their denial. If liability is unreasonably denied then you may have to proceed down a court track to trial.
Will claiming against my hospital or GP affect my future care in any way?
No. Your treating clinicians may well become aware of the claim you intend to bring but they have a duty to provide acceptable medical care at all times.
Will I have to go to court?
Less than 1% of all cases end up in trial. Many firms will always try and settle the claim out of court, keeping the claim process as short as possible. Some cases are less straightforward and if a settlement is not reached, you may have to attend court.
See also: Medical Negligence: Do You Have a Claim?
What are the time limits in regards to making a medical negligence claim?
When making a medical negligence claim you normally have three years from the incident/action or lack of action on the part of the medical professional to bring a claim. However, there are some exceptions to this rule. Occasionally, you may not immediately know that the care you have received was substandard, in those cases, you would have three years from what is known as a date of knowledge, that is the date when you first realised the care you had received had been below standard and you have suffered injury as a result.
In fatal cases, a personal representative has three years from the date of death. In cases involving injury to a child under the age of 18, limitation is three years from their 18th birthday. In any case, you should not delay in seeking specialist legal advice as your legal representatives need time to investigate your potential claim before legal proceedings are issued and some legal advisers may decline a case if you are too close to the legal deadline to bring the claim.
If a family member does not have the capability to deal with their own affairs or deceased, can I claim on their behalf?
Yes. In cases where a person lacks the legal capacity to act on for themselves, a litigation friend can be appointed to deal with the day to day running of the case. Where someone may have capacity but is too unwell or not available to provide instructions on their case, they may appoint a person to act on their behalf either by means of personal authority or through a formal power of attorney. In respect of a deceased person, if they made a will prior to their death, the executor is appointed to act on their behalf, if there is no will, then a family member may represent the Estate, this is usually the next of kin.
How can I fund the costs of a medical negligence claim?
Most law firms will provide free legal advice while they consider whether you have a case for compensation. If your case is taken on, your lawyer will provide detailed advice on funding your claim. The vast majority of medical negligence claims, are funded by a “no win, no fee” agreement where possible, meaning you won’t be charged legal fees if you are unsuccessful. If you do win your claim you will be charged a success fee that will be taken from your damages. All other legal fees will be covered by the defendant should the case be successful.
However, if it is not possible to represent you on a “no win, no fee” basis, your lawyer will ask you to check if you have any other means of funding such as a legal expenses insurance policy, this may be part of your house and contents insurance, car insurance or you may have funding via a Trade Union or similar.
See also: Should I Get Health Insurance?
If my case settles, how long will it take for me to receive my compensation?
Compensation is usually paid within 28 days, with the vast majority being paid within 14 days.
Is Legal Aid available to me when I make my claim?
Unfortunately, cases which can be funded by legal aid have in recent years been severely restricted by cuts in government funding resulting in the vast majority of cases being ineligible for Legal Aid. Your lawyer will advise you if you are eligible for funding but today Legal Aid is only available for cases involving neurologically impaired babies.
If your child has suffered neurological damage as a result of a birth injury you may be entitled to Legal Aid, provided you meet the funding criteria. However, this method of funding is complex but your legal advisor should be able to provide specialist advice on this.
Our thanks to Hugh James Solicitors for their assistance with this article. Hugh James Solicitors is a full service, top 100 UK law firm offering specialist legal and financial advice. Their wealth of experience and expertise allows them to deliver high-quality advice when making a medical negligence claim. To find out more about their services, visit their website: hughjames.com
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