Taking out a clinical negligence claim
You can claim clinical negligence if something goes wrong with your treatment.
If your treatment goes wrong
Health care services usually treat people without any significant problems. But sometimes things can go wrong.
It can be distressing if things go wrong during your medical treatment. You may feel angry and upset. But there are things that you can do. Knowing this may help you to cope better with this stressful experience.
Often, the easiest 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 or claim clinical negligence.
What is clinical negligence
Clinical negligence is when a health care professional's care causes injury or harm. The care must be below the standard expected in the given 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
- a healthcare professional did not tell you about the risks of a particular treatment
What is a clinical negligence claim
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 claim within 3 years of the injury or harm. 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.
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.
By making a complaint, you should get answers about what went wrong or get an apology. You will also find out how the hospital will prevent the problem from happening again. This can help you decide whether you want to take out a clinical negligence claim.
In a clinical negligence case, you're asking for money. The money is to compensate you for the harm or injury due to clinical negligence.
The amount of compensation you receive depends on your injury. It might also include any extra expenses you've had due to the injury. This might be expenses like 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 you can contact the charity Action against Medical Accidents (AVMA):
- Law Society (England and Wales)
- Law Society of Scotland
- Law Society of Northern Ireland
- 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.
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. People usually settle most claims 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.
It can be expensive to take legal action. And if you lose, you are likely to have to pay the other side's (hospital or health professional) costs as well.
The other side 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
There are organisations that can provide more information and advice.