How does the compensation process work?
We have set out a below a guide to the medical negligence claims
process as we believe you should be fully aware of the process that is involved
when dealing with a medical negligence claim.
Initial steps in investigating a medical negligence claim
Assessing medical negligence claims
For all medical negligence claims it is necessary to prove that:
- first of all some negligence or breach of duty
has occurred; and
- that the negligence or breach of duty has caused damage and
In some instances the issues and facts of a medical negligence claim may be
clear and it may be possible to assess whether or not it is appropriate
to obtain funding and to begin investigating the
In order to pursue a medical negligence claim it is necessary to
put some funding in place to assist you with the likely legal costs,
- Trade Union Funding
- Legal Expense Insurance
- Conditional Fee Agreement ("no win no fee")
- Public funding (legal aid)
- Private basis
We would then need to access copies of all relevant medical records
before obtaining appropriate expert medical evidence to consider:
- whether the treatment that you received was of a substandard
nature (ie which is known as liability), and
- whether you have suffered as a result of that treatment, or whether
you would have suffered the same complications in any event (ie which is known as
It is on the basis of the expert medical opinion that we can
assess whether or not a medical negligence compensation claim can proceed further.
We also have to look at the position in the future and the Claimant’s
condition and prognosis.
In some cases we only have to instruct one medical expert but in
others we have to instruct more than one especially if the medical condition is
complex or the medical negligence claim is difficult.
An example of a classic situation where more than one expert is involved is where
negligent treatment took place in A & E and the injury was orthopaedic.
Potentially both an A & E expert and an orthopaedic Consultant might need to
Scope of claim
There are two components to a medical negligence compensation claim:
- the injury and damage caused = General Damages, and
- out of pocket and other expenses = Special Damages
In many cases the special damages are a substantial part of
the overall award, particularly if care and loss of earnings are included.
These are considered both for the past and the future.
catastrophic injurycases consideration is given to many different aspects
of future needs eg housing, occupational and other therapies, care
NHS Complaints Procedure
In cases where the complaint/medical negligence claim is not as clear cut,
one step that can be taken to assess the matter in terms of pursuing a medical negligence
claim would be to access the relevant NHS Complaint’s Procedure as this may resolve any concerns
and if not, should result in a reasoned response, which will help to assess
whether legal action would then be appropriate.
The Department of Health has issued guidelines with regards to the NHS Complaints
procedure and the steps to be taken. Essentially, you have the right to:
- Have your complaint investigated
- Refer the matter to the Parliamentary and Health Service Ombudsman if you are not
happy with the outcome of your complaint
- Make a claim for judicial review
- Receive compensation
You should complain:
- to the healthcare provider
- within 12 months of the date of the incident or the date you became aware that there
was a problem
Should you be in receipt of a state benefit or a low income
it may be possible for us to help you under the Legal Help
at Court Scheme which is funded by the Community Legal Service Fund.
Once you have received the outcome of your complaint the next step
would be to seek independent legal advice with a view to pursuing
a legal medical negligence claim.
If you have any concerns about pursuing a medical negligence claim
or making a NHS complaint then please contact us.
Simpson Millar LLP provides 'accurate, perceptive and intelligent' advice.
Legal 500 2012
Medical negligence claims - get in touch with us
Speak to our medical negligence claims solicitors today on Freephone:
0808 129 3320 or send us an email using our
online enquiry form and we will get in touch with you.