Beginners Guide to Clinical Negligence Claims

Definition
Clinical Negligence (also called Medical Negligence) is where there has been a breach of duty of care by a medical practitioner towards their patient.  Every medical practitioner has a duty of care towards the patient that they are treating.  If there is a breach of that duty of care then there can be a claim for compensation. It is called Clinical Negligence because it includes doctors as well as other clinicians such as, for example, nurses, dentists, and beauty therapists.

A Successful Claim
To succeed in a claim for compensation, the Claimant has to prove three things.  First, that there has been a breach of the duty of care.  Secondly, that they have suffered injury or damage.  Thirdly, that there is a causal link between the breach of duty and the injury suffered.  In other words it was the breach of the duty that directly led or contributed to, the injury.

Who to Sue
The claim for compensation may not be against the doctor. When the doctor is employed by the NHS then the claim lies against the NHS Trust that employs them. If, however, the medical treatment was carried out privately, then the claim lies against the doctor. The same duty of care applies whether treatment was carried out under the NHS or privately.  

Who can sue
Most claims are brought by adults. Claims can also be brought on behalf of children. In those circumstances a Litigation Friend is appointed who will supervise the claim and act in the best interests of the child claimant. Generally the Litigation Friend is the child’s parent. If someone is not of full legal capacity because, for example, dementia or a brain injury, then a claim can also be brought on their behalf. Claims involving children and adults not of full legal capacity, have settlement of their claim approved by the Court. Compensation received is paid into the Court of Protection who safeguards the money on behalf of the Claimant.

Time limits on claims
There is a three year limit on bringing claims for compensation for clinical negligence.  The three years runs from the date when the act or omission which gives rise to the claim, occurred.  Before the third anniversary of that event, proceedings have to be issued in Court.  If the patient did not know that the breach of duty had occurred or could not reasonably have been expected to know, then time will only start running as from the date when they knew or ought to have known. Further the Court has a discretionary power to allow late claims to proceed.  If a claim is started after three years the Court will look at the balance of inconvenience and the prejudice as between the Claimant and the Defendant. The Court will then decide whether to allow a late claim to proceed. Claims should be brought as soon as possible and, in any event, within the three year period.

Compensation
Compensation recovered in a successful Clinical Negligence claim is referred to as damages.  Compensation is split into two categories, general damages and special damages.  General damages are a payment by the Defendant to compensate the Claimant for pain, suffering, and loss of amenity. The amount of compensation paid depends on the severity of the injury suffered.  The more severe the injury, the higher the amount of compensation.  The exception to this is where the negligence of the Defendant has caused the death of the Claimant. Special damages are a repayment by the Defendant of actual monetary losses suffered by the Claimant because of the negligence of the Defendant.  Included in the category of special damages are, for example, loss of earnings and travelling expenses.

Paying for your claim
Funding a claim for compensation for Clinical Negligence can be expensive. The costs involved in investigating a claim are generally in the region of £3,000 to £4,000.  The costs involved in issuing Proceedings and taking a claim through to Trial can often be in the region of between £25,000 and £50,000. 

If the claim is successful then generally the successful Claimant’s legal costs are  paid by the Defendant.  If the claim is unsuccessful, the Claimant has to pay both their own legal costs and the Defendant’s legal costs as well.

There are a number of funding methods available for Clinical Negligence claims.  These include Legal Aid, Legal Expenses Insurance, No Win No Fee agreements, and Private Funding.

Legal Aid is available for Clinical Negligence claims and is administered by the Legal Services Commission. A Legal Aid Certificate, which enables the Solicitor to pursue the claim, is granted providing the Claimant can satisfy the financial requirements and establish that they have reasonable prospects of success.  The financial requirements depend on the Claimant’s income and capital.  If you are in receipt of some of the State Benefits, such as Income Support, then you already fulfil the financial requirements for legal aid. The financial limits for Legal Aid are set just above the financial limits for receipt of state benefit. If the Claimant is a child then it is the child’s financial circumstances that are taken into account, not the parents.  If the applicant for Legal Aid is married or cohabiting then their partner’s financial circumstances are taken into account. Please see their web site for more information: www.legalservices.gov.uk.

Legal Expenses Insurance is a policy sold by insurance companies.  The policy normally costs about £12 -£15 per year.  It is often sold in conjunction with other policies such as motor insurance, household contents insurance, mortgage protection insurance etc.  Providing the policy was bought before the act of negligence occurred, then the insurance company may be prepared to fund the claim.  Most policies carry up to £50,000 worth of cover.  About 40% of the population have Legal Expenses Insurance.  If you are contemplating a Clinical  Negligence claim, check your insurance policies.  If you think that you are covered, telephone the insurance company, explain the circumstances, and ask if you are covered.  They will either say that you are not covered or they will send you a claim form.  If they send you a claim form complete the first part. The rest of the form deals with the merits of the claim.  It is inadvisable to fill out that part.  It is better to pass the form to your legal advisor so that they can complete it and return it to the insurance company.  The insurance company will tell you whether cover has been granted.  They may be prepared to instruct the Solicitor of your choice to act for you. If you do not have a Solicitor, they will find one for you.

No win no fee arrangements are were the Solicitor takes the financial risk of the case.  If the Claimant is successful their legal costs should be paid by the Defendant. The Solicitor, in addition to receiving the payment of the legal costs, is also entitled to claim a success fee from the Defendant.  This success fee is a percentage of the legal costs. As Clinical Negligence claims are expensive and risky, most Solicitors will not offer a no win no fee agreement at the beginning.  Generally they will require the client to pay for the investigation of the claim before making a decision to offer a no win no fee agreement. Often the agreement requires the Claimant to pay for medical reports. The terms and conditions of the no win no fee agreements are subject to supervision by the Law Society and it is advisable to discuss the terms of the agreement with the Solicitor concerned.

Private funding is when the Claimant pays for all of the work done on their behalf. Most Solicitors are prepared to agree to fixed fees or a stepped fee or a fee ceiling. 

Specialist solicitors
Clinical Negligence litigation is a specialised field of law.  The success rate for Clinical Negligence claims is less than for Personal Injury claims. Your chances of success are improved if you use a specialist Clinical Negligence solicitor.

There are several methods of finding one. Most specialist medical negligence solicitors have a franchise from the Legal Services Commission which enables them to offer legal aid. Check with the Legal Services Commission’s website at www.legalservices.gov.uk to find a list of Solicitors who hold a franchise in Clinical Negligence in your area.

The Solicitors Regulation Authority maintains panels of specialist Solicitors.  One of these panels is the Clinical Negligence panel.  Check with their website at www.sra.org.uk to find a member of their Clinical Negligence Panel in your area.

The charity Action Against Medical Accidents (otherwise known as AvMA) are a pressure group which fights for the rights of patients who have suffered medical accidents.  They also operate an accreditation procedure for specialist solicitors.  Solicitors who are members of their Referral Panel have been assessed by AvMA. For a list of members of their Referral Panel please check their website at  www.avma.org.uk

If you think that you may have a claim
If you think you may have a claim it is certainly worth speaking to a specialist Solicitor. 30 minutes or 1 hour spent with a specialist Solicitor can often help to clarify the matter.

The journey not the destination.
A claim for compensation can only produce money in compensation. The claim may not be about money. It may be about finding out what happened, what went wrong, and why. Most Claimants know that what happened to them cannot be put right.  Sometimes an explanation is needed. Sometimes the best conclusion to a Clinical Negligence claim is not whether money has been paid, it is whether you have been given an explanation of what happened.

Taylor Simpson & Mosley
If you think you have a claim then telephone me. We are specialist Clinical Negligence solicitors. I am a member of the AvMA Referral Panel.  I and my colleagues are members of the S.R.A. Clinical Negligence Panel.  We do hold a franchise from the Legal Services Commission in the category of Clinical Negligence.  Please phone me on 0115 9561100 or email me at patrickbooth@ts-m.co.uk. I am happy to discuss your claim without charge.

Patrick Booth
Head of the Clinical Negligence Department