Medical Negligence FAQs

Medical negligence is the term used to describe medical accidents. Sometimes the words "clinical negligence" are also used. Medical negligence claims arise when the treatment or lack of treatment you receive falls below what you were reasonably entitled to receive at the time. You need to establish that the medical practitioner acted in a way which is not in accordance with the practice of a responsible body of medical opinion.

Medical negligence claims can arise from treatment received from all sorts of medical practitioners including GPs, Consultants, Doctors, Nurses, Dentists, Midwives, Opticians and Physiotherapists.

Victims of medical accidents often face a painful and traumatic future. The medical and legal issues can be complex and very daunting. You may simply wish to make a complaint and find out what went wrong and why. You may want an apology or wish to obtain financial compensation.

If you are a victim of medical negligence, then contact one of the team members Justin Goodman, Daniel Isaac, Guy Eskell, Natalie Jones or Joanne Burton or complete our online enquiry form and one of our specialist Solicitors will contact you.

If you are dissatisfied with the medical treatment you have received, you can make a formal written complaint to the health care provider. You do not have to take legal action.

NHS medical treatment

There is a set procedure to follow if your treatment was provided by the NHS. The procedure covers complaints about treatment received from GPs, NHS Hospitals, NHS dentists or other NHS employees such as physiotherapists and occupational therapists.

Your NHS provider will be able to provide you with a copy of the procedure. 

The complaints procedure can result in you obtaining an explanation of what happened to you and sometimes an apology. It does not provide you with proper compensation for your injuries and losses unless your injuries are very minor and the amount of your out of pocket expenses are nominal.

Private medical treatment

If your complaint arises from private medical treatment, there is no standard complaints procedure. If your complaint is about a particular doctor, you can write a letter of complaint to the doctor directly. If this is not dealt with to your satisfaction, then you can complain to the General Medical Council (GMC). If the complaint is about the private hospital or clinic itself, then you should complain to the hospital/clinic directly. 

For further information please contact one of the team members Justin Goodman, Daniel Isaac, Guy Eskell, Natalie Jones or Joanne Burton or complete our online enquiry form and one of our specialist Solicitors will contact you.

To succeed with a clinical negligence claim you must establish two things:-

1. Breach of duty

You must show that the medical treatment or lack of treatment fell below what you were reasonably entitled to receive at the time the treatment took place. The medical practitioner must have acted in a way which was not in accordance with the practice of a responsible body of medical opinion.

2. Causation

You must also show that on the balance of probabilities (in other words, it is more likely than not) that the breach of duty caused you to suffer an injury and that you should receive compensation for the injury and the other losses that have been incurred.

Sometimes, in clinical negligence cases, even where the medical service provider has been negligent, the negligence has not resulted in the damage complained of because there was an underlying reason for the damage or the damage/outcome would have been the same in any event regardless of the poor treatment.

Some cases are more straightforward than others. For example, in cases involving patients who have had an operation on the wrong part of their body, or been given too much or too little medication, it is usually fairly straight forward to establish negligence.

Other cases can be very complex. There may be differences in opinions and arguments on both sides. The cases can be complicated and it is essential that you receive expert advice from a Solicitor who is experienced in dealing with clinical negligence claims.

For further information please contact one of the team members Justin Goodman, Daniel Isaac, Guy Eskell, Natalie Jones or Joanne Burton or complete our online enquiry form and one of our specialist Solicitors will contact you.

The answer to this is yes.

When someone who has a medical negligence claim dies, then the Executors/Administrators of the deceased's estate can bring a claim on his/her behalf.

If the person died whilst receiving medical treatment, then there may be an Inquest. It is important to obtain specialist legal advice as soon as possible as representation by a Solicitor at the Inquest may be very important.

If someone you know has died and you believe that this is as a result of medical negligence, then contact one of the team members Justin Goodman, Daniel Isaac, Guy Eskell, Natalie Jones or Joanne Burton or complete our online enquiry form and one of our specialist Solicitors will contact you.

The amount of compensation will depend on the type and severity of the injury, the amount of financial losses that have been and are likely to be incurred and the circumstances of your particular case.

The burden of proof is upon you as the Claimant to prove your claim. Compensation for clinical negligence claims is made up of two parts. These are:-

General Damages

This is to compensate you for the pain, suffering and any loss of amenity you have suffered and are likely to continue to suffer if there is a continuing disability. The amount is assessed by looking at previously decided cases involving similar injuries and the Government's publication used in assessing damages known as the Judicial Studies Board Guidelines. 

The amount awarded in each case depends on the type and severity of the injury as well as any long term effects.

Special Damages

This is to compensate you for any expenses and financial losses you have incurred in the past and are likely to incur in the future as a result of the clinical negligence. Examples of the type of special damages you can recover include loss of earnings, cost of treatment, cost of care, medical equipment costs, travel costs, alterations to your home, prescription and medication costs and reduced employment prospects in the future.

Interest may be added to any clinical negligence compensation awarded for general and special damages.

Interim Payments

An interim payment is an amount paid to you before the conclusion of your claim in partial settlement of your claim. Interim payments are sometimes paid by the opponent to help with the cost of medical treatment, adjustments to your home or to relieve financial hardship.

When someone has suffered a serious injury and the claim is likely to take a long time to be finalised, then it is not unusual for interim payments to be paid by the opponent.

For more information about how compensation is calculated contact one of the team members Justin Goodman, Daniel Isaac, Guy Eskell, Natalie Jones or Joanne Burton or complete our online enquiry form and one of our specialist Solicitors will contact you.

The amount will depend on a number of factors including the complexity of your claim, the type and amount of medical and other evidence required, whether the claim is disputed and whether the claim goes to Court. The legal costs can be very considerable.

We will consider and advise you about what funding options may be available to you.

The funding options include:-

1. Public Funding (formerly known at Legal Aid)

Pardoes hold the Specialist Quality Mark from the Legal Services Commission (LSC). The Legal Services Commission was formerly known as the Legal Aid Board. Pardoes can do publicly funded clinical negligence work.
To be eligible for public funding, you must satisfy two tests:-

a) Merit test

The Legal Services Commission must be satisfied that your claim warrants funding. We will make an assessment about the prospects of your claim being successful and its likely value after we have taken full instructions from you.

b) Financial eligibility test

Public funding is generally only available to people on a low income and who have very little savings or capital. To assess your financial eligibility, we will need to know about your income, savings and capital.

The LSC may make it a condition of your funding certificate that you make a monthly financial contribution towards the costs of your claim.

If you satisfy both tests, then you will receive a certificate of public funding. This will almost always be limited in the first instance, to cover the initial investigatory work and costs of your claim.

Please note that if your case is successful, then you will have to reimburse the LSC for all the costs that have been incurred under the certificate. This is known as the statutory charge (hyperlink). Normally if successful, you will be able to recover the majority of your legal costs from your opponent.

2. Legal Expenses Insurance

You may have the benefit of legal expenses insurance under your household, car, credit card or other insurance policies. We will be happy to look at your policy documentation and advise you whether this is a possibility. If you have insurance, then this may provide you with cover to pay for your own and your opponent's legal costs and expenses. We will check the terms of the policy to ensure that you have adequate cover.

3. Trade Union or Association Support

If you are a member of a Trade Union or professional association, you may have the benefit of financial support to help you bring a clinical negligence claim.
The terms of your membership should be checked carefully to see exactly what support you have. We will be happy to do this for you.

4. Conditional Fee Agreement (CFA) "No Win No Fee" Agreement

This type of agreement is available for some clinical negligence cases. If we enter into a CFA with you, then we will only be paid if you win your claim.

It is important to note that whilst lawyers can work on a no win no fee basis, other service providers, such as medical experts are not allowed to do so. This means that expenses which arise in investigating your claim, such as the cost of obtaining medical notes and records and medical reports are not covered by the agreement nor are your opponent's legal costs and expenses.

We advise our client's to take out an after the event insurance policy to ensure that in the event that the claim is wholly or partly unsuccessful the opponent's costs and disbursements and your own disbursements, such as expert and Court fees (but not our fees) are covered. It is very important to ensure that the amount of insurance cover is sufficient to cover all of the potential costs. If you win you claim, then the cost of the insurance policy premium will be reclaimed along with your other legal costs and expenses.

It is sometimes possible to obtain insurance with a deferred premium. The advantage of this is that you will not have to pay the insurance premium until the end of your case. The premium may also be paid out of the proceeds of the insurance policy if you lose your claim.

Payment of disbursements such as expert's fees

Initially, you will be liable to pay for your own disbursements. These will probably include the cost of obtaining medical notes and records and a medical report. You may be able to enter into a loan agreement to pay for the disbursements. If you do, you will have to pay interest on the loan, even if you win your claim.

Initial investigations

We normally ask our client's to pay the initial investigation costs which include obtaining your medical notes and records and a medical report before we will consider entering into a CFA. This is because entering into a CFA puts a big obligation on the firm as there is a risk of not being paid if your claim is unsuccessful.

If after the initial investigations, we obtain a report which is supportive of your claim, we will then consider entering into a CFA with you to fund the further legal costs.

If you have a CFA and win your claim, then we will receive our usual fees plus what is known as a success fee. The success fee is calculated as a percentage of the overall costs and the majority of it should be payable by your opponent.

The actual success fee is calculated according to the particular facts of your case and the risks involved.The only part of the success fee that you will not be able to recover, will be the funding element of the success fee which amounts to approximately 5% of the total success fee. This reflects the fact that we will not be paid our basic charges until the conclusion of your claim, the balance of the success fee ie 95% will be claimable from your opponent at the end of your claim if you are successful.

5. Paying yourself

You can pay the costs of investigating your claim yourself. Once the initial investigations are completed and the merits of your claim assessed, it may be possible to enter into a No Win No Fee Agreement (CFA) with the benefit of insurance to cover your opponent's costs and your disbursement costs if you lose your claim.

The above is a summary of the different funding options available. We will fully explain the financial implications of the funding options available to you when we meet.

For further information please contact one of the team members Justin Goodman, Daniel Isaac, Guy Eskell, Natalie Jones or Joanne Burton or complete our online enquiry form and one of our specialist Solicitors will contact you.