Medical negligence law in the UK has developed over the last century as a branch of the general law of negligence which also relates to personal injury compensation claims, most frequently as a result of accidents caused by negligence predominantly motor vehicle collisions. Medical negligence law, whilst having its roots in the general law of negligence, is now a distinct topic with much relevant case law, specific legislation and a unique protocol in the UK courts. Medical negligence compensations claims usually arise as a result of failed treatment, misdiagnosis or late diagnosis.
A popular misconception regarding medical negligence law is that compensation can be claimed merely because treatment didn’t work, which is in fact a very long way from the truth. The mere fact that the treatment was ineffective does not necessarily give rise to a medical negligence compensation claim nor does the fact that another alternative treatment may have worked. In order to be able to make a successful claim for damages following failed medical treatment it is necessary to establish ‘negligence’ which in its simplest terms means that the treating physician failed to reach a reasonable standard of care. Medical negligence law dictates that the following three issues must be satisfied in order to prove negligence :-
Medical negligence law dictates that a patient must always consent to clinical procedures under what is known as the ‘Doctrine of Informed Consent’. A healthcare practitioner should fully advise the patient of the proposed treatment and its effects including known risk factors. Patients should also be told about alternative treatments that are available and should make a decision in regards to medical treatment after being made fully aware of all of the facts. Failure to do so on the part of a healthcare practitioner is negligence and can also lead to serious charges of ‘battery’ if consent is withheld but the treatment is carried out in any event without agreement from the patient.
Our medical negligence solicitors offer a no-win no-fee system, and in appropriate cases use legal aid to help you pursue a compensation claim. Our firm's civil litigation solicitors are experts in the field of medical negligence law, and are members of the Solicitors' Regulation Authority Panel of Clinical Negligence Experts. If you believe that you have a potential negligence claim, then we encourage you to get free legal advice from one of our experienced medical negligence solicitors who specialises in the subject. You can do this either via the helpline or you can email our offices. There is no obligation or charge if you do not wish to proceed.
Fortunately, it is still possible to receive legal aid to cover your solicitor's costs, if you want to make a case for compensation for a clinical error, which normally involves taking the case to court. Eligibility is limited to adults over 18 years of age who either have a low annual income, or who are in receipt of certain government benefits. The rules for children under 18 are different, and they are generally accepted for legal aid assistance, unless they have a substantial amount of money in their own name. Parental income is not considered in the assessment of means.
CFAs (Conditional Fee Agreements), commonly referred to as no win no fee arrangements, are the norm for a large percentage of civil legal cases which pursue various forms of medical negligence. CFAs are not all the same and vary according to the financial agreement between the solicitor and the client. Some lawyers specialising in medical negligence require upfront funds to cover basic expenditure such as court fees and medical reports however our medical negligence solicitors do not ask for any funds on account to cover their charges for legal work.
Awards are in line with the law on medical negligence, and the compensatory sum is dependent on various factors such as: long-term disability, the degree of the injury, and the recovery time. There are two main categories pertaining to a claim: special damages, and general damages. The former applies to: expenses that have been charged to date, a loss of earnings, and the cost of care. Conversely, the latter comprises remuneration for less tangible things such as suffering and pain.
The purpose of medical negligence compensation is to place the injured person back into the position that they would have been had the negligent act not taken place. Sounds fine, but how do you compensate someone on a purely financial basis for the loss of a loved one or for a serious personal injury such as blindness or limb amputation. The concept of financial compensation has serious limitations however there is not really any other alternative and the courts in Ireland handle the issue as best they can by looking backwards to see how others in a similar position were treated by the courts in the past with an inflationary upgrade to modernise the award.
Judges do their best to calculate medical negligence compensation however the one item that is very difficult is estimation of damages for ‘pain and suffering’. After liability is established a judge will ask for representations from both parties’ lawyers in regards to their estimates of the amount that should be awarded as damages including sums for pain and suffering. A judge will make a final decision and award damages based on the lawyers representations, his own experience, authoritative literature and government guidelines but most importantly based on the decisions made by judges in previously decided similar cases.
For the sake of convenience lawyers separate different classes of compensation as follows :-
The High Court is the preferred venue for medical negligence litigation as it is authorised to award higher sums in damages than the County Court. A lawyer will determine the estimated value of the potential award of damages and will issue proceedings in the appropriate court with the possibility of transfer up to the higher court or down to a lower court as the claim proceeds and the financial issues become clearer.
The medical negligence litigation procedure starts with the client providing a full statement to their medical negligence solicitor who then instructs clinical experts to give an opinion after consideration of the clients statement and of the medical records which are obtained from the various repositories including the general practitioner and relevant hospitals. Once a positive opinion has been obtained the solicitor writes a formal letter of claim to the alleged negligent healthcare practitioner who inevitably refers the matter onto medical insurers who thereafter take matters up on behalf of that healthcare practitioner.
In rare cases the medical insurers admit liability on behalf of their insured and the matter proceeds to settlement on an agreed basis however in the majority of cases liability is denied by the medical insurer and the injured claimant’s solicitors must then issue proceedings in a court of law to ensure consideration of the matters in contention by a judge. A writ is drafted, a fee is paid and the writ is stamped, sealed and issued by the court for service on solicitors instructed by the medical insurers to represent the defendant who is usually the negligent healthcare provider or that person’s employer.
The normal civil litigation protocols applying to medical negligence litigation are then followed to ensure that the matter comes to trial as quickly as possible. This may involve both sides asking for clarification of matters that arise and the submission of all relevant documents. Once these matters are complete the case is listed for hearing before a judge who considers all of the evidence including expert reports before making a judgement on liability followed up by a hearing to determine the amount of compensation to be awarded. The outcome may in certain circumstances be subject to appeal.
Almost all legal action relating to medical negligence compensation claims throughout the world is subject to time limits. There are time limits for settling claims (the limitation period often set out in a statute of limitations) and for almost all other court procedures some of which may in certain circumstances be determined by a judge as the claim proceeds whereas others are determined by law set out in the relevant statute of limitations. It is also possible for a medical negligence lawyer to appeal many decisions and judgements made by a court of law hearing a personal injury compensation claim and these appeals are inevitably governed by time limits. The main reason for imposing time limits in medical negligence compensation claims is to bring the potential for legal action to an end within a certain period to allow all parties to get on with their lives thereafter however there are practical considerations which include the fact that over a period of time memories fade, witness become difficult to trace or die or move out of the jurisdiction and supporting documentation is often mislaid or destroyed over the intervening years.
The time limit in UK that causes the most concern in medical negligence compensation claims relates to the time in which a claim must be determined. In general terms, a medical negligence compensation claim must either be settled or legal proceedings must have been issued in a court of law within three years of the negligent act which caused the injury however this time limit is the subject of several very important exceptions as follows :-
Time limits and the statute of limitation are minefields which frequently catch out both claimants and inexperienced or negligent lawyers. Once the time limit has expired the opportunity for a medical negligence lawyer to claim compensation has most often been lost forever. If you have been involved in an incident causing personal injury you should contact a lawyer at the first opportunity. Whilst the period of two years may seem like a long time it leaves little opportunity for a solicitor to fully investigate a compensation claim. Claimants who leave maters to the last minute often find it extremely difficult to find a lawyer who will take the case on. If you would like fee advice without further obligation just contact us. A medical negligence solicitor will speak with you over the telephone and will give you an opinion there and then, on both liability and the anticipated value of the claim.