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Taking out a clinical negligence claim

Health care services aim to treat people properly. But if things go wrong you might want to make a claim for clinical negligence.

It can be very distressing if things go wrong during your medical treatment. It usually makes you feel angry and upset. There are things that you can do. Knowing this may help you to cope better with this stressful experience.

Often, the first and simplest way to sort out problems is to talk to the health care professional involved. If this doesn't sort things out you might want to make a complaint.

About clinical negligence

If you have been injured or harmed because health care services didn't look after you properly, this is called clinical negligence. You might want to claim for compensation. Before you do this, you need to think about:

  • what you want to achieve
  • if you would be happy with an apology
  • if compensation is likely to be more than your legal costs
  • if you have the time and energy – claiming for negligence can be very stressful and may take months or even years
  • getting advice from a specialist organisation or your solicitor

You need to make a claim within 3 years of the injury or harm. Occasionally this time can be extended if you have reasons for not doing it within 3 years. For children, the 3 year limit doesn't start until they are 18.

What is a clinical negligence claim

Clinical negligence is when a doctor, nurse or other health care professional provides care that causes injury or harm. The care must be below the standard expected in the same circumstances. The harm can be physical or mental.

It might happen because:

  • there's a delay in diagnosing an illness
  • there's a delay in treatment
  • you've had the wrong treatment or the treatment goes wrong
  • you haven't been told about the risks of a certain treatment

Taking out a clinical negligence claim or making a complaint

Taking out a clinical negligence case isn't the same as making a complaint. When you make a complaint, you're unlikely to get any compensation. In a clinical negligence case, you're asking for money to compensate you for being harmed or injured due to clinical negligence.

But if you make a complaint, you should get answers about what went wrong, get an apology, and find out what will be done to prevent the problem happening again. This can help you decide whether you want to take out a clinical negligence claim.

In a clinical negligence claim, the amount of compensation you receive depends on your injury. It might also include any extra expenses you've had due to the injury, such as nursing care or disability costs.

How to take out a clinical negligence case

You need to contact a solicitor who specialises in clinical negligence. The solicitor will tell you whether they think they can help. You can find a solicitor through your local Law Society, or the charity Action against Medical Accidents (AVMA):

Your solicitor will need a copy of your medical records. They might also need a copy of scans and x-rays. You'll have to pay for this. The cost will depend on the number of documents needed but is usually less than £50.

Your solicitor might also ask for an opinion from a medical expert. They then write a letter about your claim to the hospital or GP practice.

How long it takes

The hospital or health care professional has 4 months to carry out an investigation. At this stage, they might accept or deny the claim. If they deny the claim, you might need to take out legal proceedings. This means your solicitor takes the claim to court. Most claims are settled before they go to court.

Help with the costs

You need to pay for any legal action but you might be able to get some help. There are some ways to help to fund your claim:

  • your insurance – some household insurance policies and union memberships include legal expenses insurance
  • no win, no fee agreements

No win, no fee agreements are made between you and your solicitor. It means that you don’t have to pay them if they don’t win the case. If you lose, you'll usually still have to pay for court costs and the hospital or doctor’s fees. But your solicitor can take out insurance to cover this for you.

You can pay for the claim yourself if you can’t do any of these. Talk to your solicitor beforehand about what it's likely to cost and your chance of winning the case.

Remember that it can be very expensive to take legal action. And if you lose, you are likely to have to pay the other side’s costs as well.

The other side (hospital or doctor) usually pays for any expenses if you win. This includes the court costs, the cost of the medical report and your solicitor fees. They will also pay you any compensation the court decides to award.

Since April 2013, Legal Aid is no longer available for most clinical negligence claims.

More help and advice

Many organisations can provide more information and advice.

Information and help

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