The most frequently asked questions about Medical Negligence

Starting a Medical Negligence claim can seem quite intimidating but knowledge and the right professional support can make all the difference. Here are some of the common questions we’re often asked;

1. What is Medical Negligence?

Medical Negligence (also known as Clinical Negligence) refers to the treatment provided by a medical professional which falls below an acceptable standard. This is often a doctor in a hospital setting but it can also apply to any recognised medical professional, for example, nurses, midwives and physiotherapists.

For a Medical Negligence claim to be made, the patient must have suffered injury, ill health or death as a direct result of an error. Depending on the professional involved, Medical Negligence may include:

• Failure or delay in diagnosing a serious condition.
• Errors made during surgery or other treatment.
• Prescribing, dispensing or administering incorrect medication.
• Failing to advise of suitable alternative treatments.

This is not an exhaustive list, and if you think you may have suffered from Medical Negligence, it is best to discuss your case with a specialist solicitor to explore whether you have a claim.

2. How long do I have to make my claim?

The general rule is that a claim for Medical Negligence must be made within three years of the date when your injury was caused. In some cases the fact that your injury was probably caused by an error may not be apparent until many years later. If that is the case then the period begins from the date when you became aware that your injury occurred as a result of a health professional’s error.

If you are claiming for a partner or family member who has died as a result of the negligence, the three years starts from the date of death or when the negligence is discovered, whichever is later.

If you were a minor when the negligence occurred, the three years will begin on your 18th birthday. And there is no limit for a person incapable of instructing a solicitor due to lack of mental capacity, whether or not this was caused by the negligence.

3. How long does a Medical Negligence claim take?

This can depend on a number of factors, including the nature of the injury, the complexity of the case and whether it is being contested.

Collecting evidence, including accessing your medical records and obtaining reports from medical specialists, can take twelve months or longer. This may seem a long time, but it is better than going into the case without adequate preparation.

If the defendant accepts liability, an agreement on compensation can be reached relatively quickly. If the case is contested, however, it can take several years to resolve. This is particularly true when the case involves a child, since these cases are often the most complex.

4. Do I have to pay to bring a Medical Negligence claim?

The most common way to fund a claim is to appoint a specialist solicitor who works on a no win, no fee basis. Your solicitor will also arrange for insurance to cover the costs of the medical experts who will be involved in your case.

Some solicitors will charge a ‘success fee’ if your claim is successful and deduct it from your damages. OMM does not make such a charge, you will keep all of your damages except in exceptional circumstances.

If you lose, there is nothing to pay except in exceptional circumstances.

5. Will my ongoing treatment be affected by making a Medical Negligence claim?

You should not experience any hostility or problems with access to care as a result of bringing a Medical Negligence claim. It is an acknowledged right of any patient, to receive care and the hospital or other practice has a duty to accept this and continue offering care.

However, you may feel uncomfortable about receiving ongoing care from a person or department you are making a claim against. In this case, you have the right to ask to be transferred elsewhere.

6. Will I have to go to court?

Many people feel reluctant about starting a process that may involve them having to appear in court. In fact, most Medical Negligence claims are settled before the case gets to court. However, it can’t be guaranteed that your case will not go to court.

Cases that are most likely to go to court are those where liability is contested, or where there are complex issues about the nature of the injury you have suffered. In this case, your solicitor should guide you step by step through the process.

7. What information will I need to supply?

Your solicitor will request your medical records, and you may need to undergo medical examinations or diagnostic tests to support your claim. These may take some time to access or arrange.

Any statements from independent witnesses you can get are also valuable to support your claim.

You will have to provide a statement but you will receive guidance from your solicitor as to what you need to include in it.

8. What kind of compensation can I expect if I win?

This depends entirely on the nature of the case. Compensation generally falls into two categories: general damages and special damages. The former covers pain, suffering and loss of amenity caused by the negligence. This will include the nature and extent of any change in the quality of your life. It will be assessed with reference to expert medical advice, and the amount will depend on the seriousness of the injury and the extent  to which you have been affected by it.

Special damages, on the other hand, cover specific losses, such as loss of earnings or adaptations needed to your home. The court will decide on the validity of these claims and then decide on an appropriate level of compensation.

9. How do I start my Medical Negligence claim?

As soon as you suspect that a medical error has led to a permanent injury you should choose a law firm that has one or more solicitors who specialise in Medical Negligence. Look for solicitors who are accredited with The Law Society, AvMA  or APIL.

If you feel you may have a case for a Medical Negligence claim, give our team of Medical Negligence specialists a call to discuss your case.