Making a Medical Negligence Claim - Step by Step Guide

Author:
Jodie Cook
Senior Associate, Medical Negligence Lawyer
Date:
10/03/2021

To make a successful medical negligence claim, it must be proved that:

  • A healthcare provider has given substandard care
  • That this treatment directly led to an injury or made an existing condition worse

Our Medical Negligence Solicitors offer a free claims assessment, so we can speak to you about your situation and assess the chances of you making a successful medical negligence claim.

If we take on your case, we will:

  • Carry out initial investigations
  • Arrange an independent medical assessment
  • Approach the healthcare provider with details of our claim
  • Negotiate a settlement if possible

If the other side doesn’t admit responsibility, we may have to issue Court proceedings, but even if this happens, we’ll carry on negotiating and aim to resolve the case before it goes to Court.

We’ll work with the NHS to bring your case to an end without it having to go to Trial. So we may arrange mediation or some form of alternative dispute resolution at any point of the claim, as this can often lead to an amicable and fair outcome.

Contact our Medical Negligence Solicitors for a free claims assessment and we’ll be happy to discuss your situation with you. Ask us if we can help you on a No Win, No Fee basis.

Call us on 08002605010 or request a callback and we will help you.

Step by Step Guide to making a medical negligence claim

See our Step-by-Step Guide to Making a Medical Negligence Claim infographic for a visual breakdown of the process.

Initial Investigations

To help us investigate your medical negligence claim, we’ll need a full set of your medical records, which we’ll review in forensic detail. We’ll also take a detailed witness statement from you and check this against your medical records, so we can check for any discrepancies between the records and your witness statement.

It’s not uncommon for this to happen in medical negligence cases, so it’s important that any discrepancies are accounted for during the investigation period.  

Independent Medical Assessment

A health professional owes a duty of care to you as a patient, so we as Medical Negligence Solicitors must show this duty of care has been breached so we can make a claim. This breach can be obvious in some cases, but it’s not clear in every medical negligence case.

To help prove this, we’ll bring in an independent medical expert who specialises in a relevant field. They’ll assess you and prepare a medical report giving their conclusions about what treatment should and shouldn’t have given, and the long-term effects of your injury.

We also need to see if there’s a link between substandard medical treatment and your subsequent health problems (this is called Causation).

It may be that different medical experts are needed to comment on Causation, as you may have suffered various injuries because of the negligence. For example, a Spinal Cord Injury can lead to psychological problems, pressure sores and incontinence.

The Causation expert needs to confirm that, but for the identifiable breach of duty, your injury wouldn’t have been caused or that the eventual outcome would’ve been different.

Imagine if, for instance, a patient goes to see their doctor five times within a month complaining about headaches and blurred vision, but that the GP doesn’t refer them to hospital. Eventually, the patient goes to A&E, has a scan and is diagnosed with an untreatable brain tumour.

It may well be that there has been a breach of duty by the GP, but proving causation - a matter for an oncologist - wouldn’t be as simple. The oncologist would need to advise that if the GP had referred the patient earlier, they would have either survived or had a better outcome.

Approaching the Healthcare Provider

We’ll let the healthcare provider that treated you, such as a GP or NHS Trust, know that you’re taking legal action by sending a Letter of Claim. This isn’t a formal Court document, but it does contain all the allegations of negligence that we’ve investigated.

They have 14 days to acknowledge receipt of the letter and four months to investigate the claim before providing a Letter of Response. It’s at this point that we’ll know whether or not they accept responsibility for what’s happened.

It usually takes at least a year to get this point, but this depends on the specific facts of each case. For example, it may be a fairly complex case that needs several independent medical experts to be involved.

Negotiating a Settlement

If the healthcare provider accepts liability (fault), we can apply for an Interim Payment and start negotiating a settlement, based on our estimate of how much compensation you’re entitled to. This will reflect the pain and distress you’ve gone through, as well as how your injury has affected your quality of life, and any financial consequences, such as loss of earnings and the cost of any future care, treatment or rehabilitation you may need.

Issuing Court Proceedings

If the healthcare provider doesn’t accept any liability, the claim will be risk assessed and we’ll look at their reasons for denial. We can then determine whether Court proceedings should be issued.

At this stage, a Barrister will often become involved to draft the necessary Court paperwork and the case is then managed by the Court. Unfortunately, this means that it’s likely the claim will run on for some time while the Court sets directions for when each stage of litigation must take place, namely exchanging witness evidence, exchanging expert evidence, and listing the matter for a Trial. 

This takes place over many months, so we can carry on negotiating with the other side during this time, working to settle the claim before it gets to Court.

Mediation

At all stages of a medical negligence claim, we’ll consider whether it’s appropriate to try to resolve it through alternative dispute resolution (ADR) and/or mediation with the Defendant. This can be a far less confrontational way of settling a claim, and can give you and your family a voice early on in the litigation process.

Our aim is to work with the NHS, not against it, so we can get a fair outcome for you, and help the NHS learn lessons from what’s happened so the same mistakes aren’t made again.

Personal Injury Trust

When compensation is awarded, a Personal Injury Trust can ensure that the recipient remains eligible for any state benefits they’re receiving.

Time Limits on Making a Claim

In England and Wales, you must claim within 3 years of the date that the medical negligence happened, or 3 years from when you became aware that you received negligent treatment.

Time limits are different for children or those who don’t have mental capacity, so it’s important to seek legal advice as soon as possible.

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