When will the Hospital or doctor know about my claim?
Should I make a complaint about my medical treatment?
Will the claim affect my medical treatment? Will I be struck off my doctor’s list?
How long do I have to bring a claim? Is there a time limit?
Can I obtain compensation through the NHS complaints procedure?
If I decide to take legal proceedings, how will the claim be funded?
What do I need to prove to win my case?
Is it possible to get a fair hearing? Don't all doctors close ranks?
How long does a claim normally take?
How much compensation will I receive?
How do I choose a solicitor to handle my claim?
What can Withy King offer me?
When will the Hospital or doctor know about my claim?
When we first apply for your copy medical records, we have to give the doctor or Hospital brief details of the nature of your claim.
Should I make a complaint about my medical treatment?
You can make a complaint instead of, or before, taking legal action in relation to your medical treatment. You do not usually need a solicitor to help you with this – your local ICAS can provide help and support through the process.
Further details of the NHS complaints procedure, including the various time limits and free support which you can get for this sort of complaint is set out in this website – see Complaints About Medical Treatment for further information.
It can be helpful to see what kind of response you receive and the information likely to be relied upon.
There is an NHS complaints procedure which involves making a written complaint within six months of the incident and you should expect to receive a full response within 20 working days of receipt of your complaint.
There are two further tiers to this procedure involving an Independent Review and ultimately reference to the Ombudsman.
However, this process can take up a lot of time and you may still be dissatisfied with the formal response to such a complaint
Will the claim affect my medical treatment? Will I be struck off my doctor’s list?
It should not affect your treatment, or lead to your being asked to leave your GP surgery.
If it does lead to your being asked to leave, you should complain about this to the Primary Trust and surgery itself with the help of ICAS so that the issue can be resolved as quickly as possible and you can promptly receive any ongoing medical treatment you require through a new GP surgery.
How long do I have to bring a claim? Is there a time limit?
Claims usually have to be issued in the court within 3 years from the date of the allegedly negligent medical treatment, but it can be 3 years from the date you first became aware, or ought reasonably to have been aware, that you might have been injured as a result of negligent treatment. By bringing a claim we mean issuing proceedings in Court. Failure to do so within the three-year time limit is likely to result in your claim being statute-barred (out of time).
There are exceptions. The three-year limit does not apply to children or adults with mental difficulties.
Children have until 3 years after their 18th birthday in which to bring a claim. They must issue before their 21st birthday. A claim can be brought on their behalf, before they reach 18 years of age, by a litigation friend (normally a parent).
For anyone with learning difficulties or mental illness, there is no time limit. A claim for them has to be brought on their behalf by a litigation friend.
The courts have discretion to extend any time limits, but they do not allow many claims to be brought out of time. You should pursue your claim within the above time limits if at all possible, and the sooner you begin your investigation the better.
There is one further exception. For example, you may not know until a later date that you have been injured. This is frequently the case in industrial disease and clinical negligence claims where the person may not become aware of their injury until some considerable time after the harm was done.
In certain limited circumstances, it is possible to argue that the three years does not run until you have knowledge of your injury. If you think this may apply to you then let us know.
It is also possible to obtain permission from the Court to bring a claim that is out of time. However, the Court exercises this discretion sparingly and it is always better to bring a claim within the three-year period than to leave it in the hope that the Court will allow you to bring a claim out of time. This is a complicated area and if it applies to your claim we will let you know whether there is anything that you can do.
We will tell you what the time limit for your claim is.
Because of these time limits, it is important to get specialist legal advice as soon as possible. Three years can sound like a long time, but in terms of a compensation claim, the sooner you begin the better.
Can I obtain compensation through the NHS complaints procedure?
No, the complaints procedure is not presently designed to award compensation to the complainant. If you are seeking financial compensation, you will need to consult a Solicitor and make a claim for damages through the Courts.
If I decide to take legal proceedings, how will the claim be funded?
There are various ways of funding a clinical negligence claim. You may be entitled to a Legal Services Commission Public Funding Certificate. Public Funding is both means and merits tested. You should speak to a member of our Clinical Negligence Team to see whether you may qualify for this type of funding.
Alternatively your claim may be suitable for 'no win, no fee' funding and again you should speak to one of the members of our Team for further details. We also provide a series of packaged products aimed to suit your financial means. See Funding for more details.
What do I need to prove to win my case?
Breach of Duty
In order to prove that you have been afforded sub-standard and negligent treatment, you must be able to show that the treatment you received fell below a reasonable standard of care you would have expected to receive from a reasonably competent doctor in his or her field at the time of treatment. If the medical evidence shows that the doctor acted in a way which was acceptable to a responsible body of doctors in the same field of medicine, this will be a valid defence and your claim is unlikely to succeed.
Causation
You then need to prove that the failings in your medical treatment have caused you to suffer an injury, on the balance of probabilities (i.e. more likely than not), and that you are due compensation for those injuries.
Is it possible to get a fair hearing? Don't all doctors close ranks?
If you have genuinely received treatment of a poor standard then nowadays it is usually possible to identify an independent expert in the appropriate field who will be prepared to say that in his view, your care was sub-standard. In recent years, more doctors have come to realise that 'closing ranks' is simply likely to bring their profession into disrepute. Expert witnesses are required under the Civil Procedure Rules to be impartial and have a duty to the Court rather than to the party who instructs them, so it should be possible to obtain a genuinely independent and impartial view.
How long does a claim normally take?
This will entirely depend upon the particular facts of your claim. A solicitor will be able to advise you more accurately in relation to the timescale for your own claim. This depends on several factors such as whether:
- liability (fault) is disputed;
- you need further treatment to improve your condition;
- the medical expert is able to give us a final prognosis;
- we are able to agree any settlement proposals;
- it is necessary to go to trial to ask the Court to decide any issues e.g. liability, causation, or the value of the claim.
The majority of the simplest cases can be dealt with within 18-24 months, but complicated claims take longer. Nevertheless, it is now rare for any new case to take longer than 3 years to resolve.
How much compensation will I receive?
This will depend upon the particular facts of your claim.
‘Compensation’ is made up of 2 elements:
1. General damages – compensation for your pain, suffering and effects upon your everyday life. This is valued by looking at the Judicial Studies Board Guidelines and the amounts of money awarded in previously decided cases with similar facts. To see some examples of our past cases see Case Reports;
2. Special damages – your financial losses, both in the past and the future. Detailed evidence and documentary proof is needed to support any claims for financial losses.
Each case depends upon its own particular circumstances and a figure will either be agreed upon or decided by the Court.
Before we can let you have any reliable indication of how much you are likely to receive we will need to obtain a medical report. This will set out your injuries and give full details of the treatment you have received and the long-term prognosis.
Once we have that report we will be able to advise you on how much your claim is worth.
We can include a claim for loss of earnings or other income, travel expenses, medical treatment and any other losses or expenses we can show were caused by the medical accident.
You will be entitled to receive interest on your losses and expenses, to compensate you for any delay in payment.
Future Loss. Depending upon how serious your injury is we may be able to pursue a claim for continuing future loss. For example, you may be unable to earn as much as you did before the accident or if you will find it harder to find a job because of your injury. You may need help with personal and household tasks or need special equipment or transport.
These are matters that we shall investigate more carefully with you after we have a clear medical prognosis
All “compensation” must be proved to be a result of the allegedly negligent medical treatment. If the link cannot be proved, then no damages will be awarded by the court.
The burden of proof is upon you as a Claimant to prove each and every aspect of your claim, including your entitlement to general and special damages.
How do I choose a solicitor to handle my claim?
You can go to any solicitor of your choice.
However, you should make sure that the solicitor has the necessary proven expertise and experience in dealing with clinical negligence claims.
A firm which has a Legal Services Commission Specialist Quality Mark for clinical negligence work will have a contract for such claims, and is considered by the Government to have specialist clinical negligence solicitors who can help you. Otherwise, ask if your solicitor is a member of a specialist panel: either the Solicitors Regulation Authority Clinical Negligence Panel or the Action against Medical Accidents (AvMA) Referral Panel. If they are not panel members themselves, they should be supervised by a panel member.
What can Withy King offer me?
A specialist clinical negligence advice service for Claimants, with an initial free interview in person at our offices or at your home if you cannot come to us, and/or by E-mail or telephone to discuss your potential claim.
If you look at our Team Profiles you will see that we have Solicitors Regulation Authority and Action against Medical Accidents (AvMA) panel member supervising all work and we have experienced a wide range of claims accumulated over 25 years.
