Before you begin the process of making a claim for medical/clinical negligence, it is important to know that you should speak to a solicitor as soon as possible as there are time limits which apply to pursuing a claim.
Court proceedings need to be issued within three years of the negligence or within three years of the date that you become aware of the negligence. In cases involving a child, the three year period does not begin to run until their 18th birthday.
Identify a suitable solicitor
You need to identify a suitable solicitor with whom you can discuss your potential claim. Draw up a shortlist of solicitors by identifying if they have the required expertise and experience for your particular injury, looking at their track record and recommendations from satisfied clients. The Law Society has a panel of accredited clinical negligence solicitors.
Make use of the free, no obligation consultation
Most medical negligence solicitors offer a free, no obligation consultation where you can discuss the basic facts of your potential claim. Before you phone them, it is important to make a list of any key information such as:
- Where and when your injury may have taken place
- Details of injuries and symptoms
- Details of any complaints made, and the response received
When speaking to a solicitor, don't be afraid to check their credentials. What experience do they have with your kind of case? It will be necessary to prove that the care you / your relative received fell below an acceptable standard (breach of duty) and that, as a result, you have suffered injury (causation).
After you have spoken to a solicitor, you will get an indication as to whether or not you have a claim.
Agree suitable funding
You will need to agree with your solicitor the most appropriate way to fund your case.
Legal Aid for claims for damages for clinical negligence is only available to one category of claimants; where a child has suffered severe disability due to neurological injury during their mother's pregnancy, at birth or the first eight weeks of their life.
If you have buildings and contents insurance, this may include legal expenses which will cover the costs of claim. If not, your solicitor may be able to act for you under a Conditional Fee Agreement (often known as a 'no win – no fee' agreement). They may recommend that you take out After the Event (ATE) insurance to cover the cost of the claim.
Investigating your case
Your solicitor will begin investigating your case and take witness statements from you and other parties. They will obtain medical records from your GP and any hospitals involved; in most cases, these records are crucial in establishing if you have a good case or not. If it looks like the case will proceed, medical experts will then be instructed; once they have reported back on your case, it may be necessary to speak to a barrister and other experts to look through the details of your claim.
Letter of claim
If the experts consider that the care you received fell below an acceptable standard, and that this has caused your injury, a ‘Letter of claim’ will be sent to the potential defendant(s) detailing your claim, highlighting the relevant allegation(s) and giving them four months to respond formally with a ‘Letter of response’
Letter of response and settlement
If the potential defendant admits liability, a judgement against them can be made and your solicitor will try to establish a value of the claim and negotiate a settlement from the other side. If your claim is disputed, formal court proceedings will begin and a court will decide on the validity and value of the claim, and award what it determines to be an appropriate settlement.
It can be difficult at the outset to predict how long a case will take to conclude. The average length of time to complete a medical negligence case is 2-3 years, and your solicitor will inform you of any developments which would mean that the case might not be concluded within an average timescale.
Article written and contributed by Ison Harrison Solicitors, Leeds
DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances, and is merely a general comment on the relevant topic. If specific advice is required in connection with any of the matters covered in this article, please speak to Ison Harrison Solicitors, Leeds directly.
Published on 12th July 2018