It can be hard to know where to start when making a medical negligence claim or even knowing if what happened to you was medical negligence to start with.
According to the NHS constitutional values, all patients have the right to raise a complaint and investigation if they believe they have been mistreated or harmed. Complaints can be made for all NHS providers including GPs, dentists, opticians, and pharmacists, as well as private bodies if the NHS has paid for the treatment.
Questioning the people that are supposed to be caring for you may be a scary or daunting thought but, with the right help and knowledge, the process can be straightforward and stress-free. Here, Vince Shore, Leading Clinical Negligence Solicitor at Hudgell Solicitors, shares 10 vital things you should know before pursuing a claim.
Table of Contents
1. Lodge a formal complaint
If you are not happy with the medical treatment you have received, you should firstly make a formal complaint to your healthcare provider, under the NHS Complaints Procedure. Once acknowledged, the provider will respond informing you of how the complaint will be investigated and how long they envisage this will take.
It is likely you will be asked to attend a meeting to discuss your concerns in more detail, however it is worth noting you do not have to do so and this will not impinge the success of your claim moving forward. Once your complaint has been looked into you will receive a formal written response; this can take longer than initially specified as it requires reviewing medical records and consulting the other individuals involved.
2. Time limit
If you or a loved one has suffered the tragedy of medical negligence or malpractice, a claim will need to be made within a three year ‘limitation period’ in order to be considered and compensation to be awarded. It is important to file a case within the three-year period as you are likely to lose your right to claim if not.
Exceptions are made in some circumstances; for example, if the claimant is a child when the negligence occurred, the three-year period starts when they reach 18 years of age. If an individual is unaware of the negligence, (for example a misdiagnosis) the three-year period starts from the date this is discovered. Similarly, if the claimant lacks the ability to understand that they have possibly suffered from medical negligence, the three-year limit does not begin until the claimant is deemed to have that understanding.
3. Find a solicitor
Using a specialist medical negligence solicitor will make the process of making a claim much smoother and hassle-free. Before agreeing to represent you, the solicitor will assess your case and decide whether you have grounds for a claim. They will guide you through the journey of making a claim, acting as the middleman to communicate processes and next steps. It is a solicitor’s job to keep you informed of your legal options at all times, and to help you secure the compensation you deserve.
Although it is possible to make complaints without using legal advice, it is likely to take longer and involve a lot more leg work.
4. It probably won’t go to trial
One of the main draw backs for claimants that are unsure whether to make a claim, is the daunting thought of appearing in court. However, depending on your individual case, it is unlikely your claim will go this far as almost all cases of medical negligence are settled before they go to trial. Claimants are advised to be prepared for court and it will be your solicitor’s job to ensure you are confident and prepared to do so if it was to come to it.
5. It can be NHS or private
It is a common misconception that medical negligence claims can only be made for NHS health professionals, however any form of providers are eligible if there is a recognisable act of negligence. This includes an individual or organisation providing health care including: dentists, opticians, physicians, surgeons, GPs and pharmacists.
6. Access to medical records
In most cases, your solicitor will request the medical records related to your claim, in order to assess the circumstances and get a clear idea of what happened. This is something you can request yourself along the way or whilst in the early stages of making a claim, however legal professionals are highly experienced and thorough in sourcing such information.
7. You’ll need evidence
The stronger the evidence and proof that is provided when making a negligence claim, the more likely it is to be successful. A common mistake is people feel scared or embarrassed to voice concerns at the time. If something is bothering you, don’t be afraid to speak up as, if anything, this will prove you tried to nip it in the bud at the time. Jot down any concerns on a piece of paper as you come across them and don’t be afraid to include as much detail as possible. Again, this will only strengthen your claim down the line as well as help to jog your memory.
8. Medical experts
In most cases, medical experts will need to be called upon to give expert evidence as part of the claim. Their medical opinion will be used to establish whether the healthcare that is being disputed was in fact negligent and what long term affects they feel this will have on the claimant.
9. How are you going to fund it?
Years ago, individuals making a medical negligence claim were provided legal aid, however this is not the case anymore, meaning claimants have to fund the process themselves. In order to make sure you are not out of pocket, it is advised to enter into a Conditional Fee Agreement, also known as “no win no fee”.
10. How long will it take?
Making any form of complaint or legal claim can be a lengthy process, so it’s important to be patient. As a rough guide, medical negligence claims can take between eighteen months and three years to settle. Although there is little that you can do to speed this process up, making sure you are prompt and organised throughout will avoid solicitors having to chase or request additional information.
Making a medical negligence claim for yourself or a loved one can be a complex and emotional experience. Before and during the claim, you should carry out as much research as possible; gathering evidence, requesting medical records and carefully selecting a trustworthy solicitor to help guide you through the process.
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