Pursuing and funding your claim
Claims are complex. Below you'll find more information about pursuing/funding claims.
1. What is Medical Negligence?
2. What information do you need to assess my claim?
3. Can I claim Compensation?
4. Are there time limits for claiming compensation?
5. How is a Medical Negligence Claim Investigated?
6. What happens when the Court becomes involved?
7. How do you assess the amount of compensation that should be paid?
8. Will the compensation be paid as a lump sum or annually, for life?
9. Why should you pursue a medical negligence claim?
10. What happens if my claim is not successful?
11. How do I fund my medical negligence case?
12. How do I make contact with your solicitors?
Medical negligence occurs when the medical treatment provided to you by a healthcare provider, such as a doctor in a Hospital, falls below a reasonably accepted standard and leads to or causes you to suffer an avoidable injury that results in on-going damages/losses.
It helps our legal team enormously to quickly assess prospective compensation claims if new clients have information about what has happened to them to hand. The following details are of particular use (although do not worry if you do not have all of these available):
- An explanation of the condition you were being treated for;
- The type of the treatment you received;
- The time and place of the treatment;
- Details of the treating doctor or other healthcare professionals;
- Why you believe that the care you received was substandard;
- What injury was caused;
- Details of any financial losses you have suffered;
- Information about your financial position and, if possible, whether you have legal expenses insurance cover (the importance of this is explained in detail below).
To succeed with a medical negligence claim it will be necessary to prove that:
- The healthcare provider owed you a duty of care;
- this duty of care was breached because you received sub-standard treatment;
- the sub-standard treatment led to or caused you injury; and
- the injury was significant and caused loss.
It is necessary to prove all of these parts of the negligence test. If this can be demonstrated, with the assistance of independent medical experts, a claim for compensation from the Defendant will be pursued and, if an admission of wrongdoing made, settlement reached.
There are time limits for pursuing clinical negligence compensation cases. There are different rules for children and adults and for those assessed as lacking mental capacity. We have a dedicated page with information on Time Limits for Claiming found by clicking here.
Medical negligence claims can be timely and complex which is why you need a specialist clinical negligence solicitor accredited and recognised as leaders in their field in this work.
Every claim is different but we have set out here the general way a case is investigated. This is in accordance with the Pre-Action Protocol for the Resolution of Clinical Disputes, which encourages parties to try and resolve medical negligence claims without Court involvement.
The first step is for us to speak with you and find out exactly what has happened with your medical care. This may involve reviewing any correspondence you have had with the Hospital, including an NHS Complaint Response (click here for information) and/or any Hospital investigation report, often called a Serious Untoward Investigation Report. It is helpful for us to have as much information as possible and where there is considerable uncertainty about what has happened we may encourage clients to lodge an NHS complaint.
Following an initial review our team of solicitors will assess the prospects of success of establishing negligent care. We may contact an independent medical expert on an informal no names basis for a preliminary opinion. We will then carefully advise you about this and about your funding options to pursue a compensation claim. Funding can be complex and there are a variety of ways to pay for a case for adults and children dealt with below.
Once funding is in place, we will request all relevant medical records from the Hospitals and/or GPs involved. These medical records, often including radiology, will be professionally sorted and collated for us to carefully review. We will discuss with you exactly what the medical records say and work with you to prepare a witness statement so that you can record a factual account of what happened. Witness statements can be crucial in medical negligence claims and we encourage our clients to keep detailed notes of their treatment and, in particular, note down straight away key events that they think caused them injury.
When witness statements are complete and a full set of medical records have been obtained, we will instruct leading independent medical experts to report on the standard of care provided and, if there was poor care, whether this led to or caused avoidable injury. It is often necessary to instruct more than one medical expert to report on these legal tests.
For example, if a child has sustained a brain injury at birth, we often need expert evidence from a midwife, obstetrician, neuro-radiologist and a paediatrician or neonatologist. The type of injury our client has sustained dictates which type of independent expert to instruct.
Once we have the experts’ reports we will meet with you to explain what they say. We will be constantly reviewing the prospects of success in your case and will discuss this with you.
If the expert evidence is very clear and straight-forward that sub-standard medical treatment has caused an avoidable injury, we may proceed directly to prepare a Letter of Claim setting out the allegations of negligence and serve this on the Defendant Hospital.
Alternatively, if there are questions that need to be raised with the experts and/or the medical negligence claim is extremely complex, such as with high value birth injury cases involving children, we will arrange a Conference with a barrister, the experts and you. A specialist clinical negligence barrister will be instructed to test the medical expert evidence and to provide advice about the strengths and weaknesses of a case.
If the barrister is confident that there is a good case, they will likely help draft a Letter of Claim setting out the allegations of negligence which will be served on the Defendant.
The Defendant will then have 4 months to investigate the allegations of negligence set out in the Letter of Claim and to respond (it is common for the Defendant to take longer than 4 months) by either admitting liability for poor care or denying this in a Letter of Response.
If the Defendant makes a full admission of liability the claim will proceed on what is called a quantum only basis, where the focus of the investigation will be on assessing how much compensation should be paid to you by the Defendant taking into account the severity and nature of any injury sustained and how this has affected the Claimant’s life. The different damages awards that are considered are discussed in the sections below on this page.
If the Defendant disputes liability, we will carefully assess the reasons they put forward for this, often with the barrister and the medical experts and, if they maintain their position and are not swayed by the Defendant’s arguments, it is likely we will Issue the claim at Court.
If the Defendant disputes liability in the Pre-Action phase and your case is still supported by the experts we have instructed, it is likely to be issued at Court. Once the claim is issued, we have 4 months to send the Defendant specific legal pleadings setting out the allegations of negligence (the Particulars of Claim); a Preliminary Schedule of Loss (setting out the different awards of compensation likely to be pursued) and, if relevant, a report from one of the medical experts with information about the Claimant’s condition and prognosis.
The Defendant then usually has 28 days to consider and respond to the Particulars of Claim by admitting liability or disputing it by sending through a Defence. If the Defendant continues to dispute liability the claim will continue down a set Court path, which is ultimately geared towards a trial. The Court will liaise with and manage both parties in terms of the experts they instruct, the issues these experts discuss and the associated costs.
The Court encourages the parties to try and narrow any disputed issues as far as possible and to encourage and facilitate settlement and resolution of a case. Our team of expert lawyers have considerable experience of Court process and will regularly update and advise you on what is happening and what decisions need to be made. It is, generally, uncommon for a disputed medical negligence claim to go to trial because most cases settle before on an “Out of Court” basis given that there is a Litigation Risk of both sides of losing a case at trial.
Court can, of course, be a daunting prospects but our team will be there to support you throughout. If a clinical negligence claim does go to trial it is quite unlikely that you or your family will be required to give witness evidence because statements are usually read aloud but you may be cross examined.
We investigate how much compensation someone should receive as a result of medical negligence by carefully examining the impact of an injury on your life. This is done by liaising with you to prepare a detailed witness statement setting out, amongst other aspects, the pain and distress an injury has and continues to cause you and how this has affected your life, usually, by comparing your pre-injury life and routine to the life that you live now.
We often instruct independent medical experts to assist with the quantification process; for example, we might instruct a psychiatric expert to assess how a psychiatric injury might impact a person’s ability to return to work and progress their career. We regularly instruct care experts to assess a person’s needs if they have suffered a very serious injury from poor medical care. Examples include children with cerebral palsy and adult spinal injuries.
It is likely that we would again arrange a Conference with a specialist clinical negligence barrister and the quantum experts to review and test the different elements of a claim for compensation before these are incorporated into a specific Schedule of Loss document.
The types of different damages awards are determined by the nature of an injury. To illustrate this we have set out below the typical areas we examine in quantifying claims:
- The cost of rehabilitation or further treatment;
- The nature of your care requirements and the cost of meeting them;
- Loss of earnings;
- The cost of special aids and equipment, from wheelchairs to touch screen computers if appropriate;
- The need for adaptations to your home or even the cost of a new home;
- Special educational needs;
- The need for help from therapists;
- Mental health or community care needs;
- Tax efficient settlement options.
In particularly high value medical negligence compensation claims it may be more financially advantageous for you to receive a smaller lump sum and annual periodical payments rather than just one large amount at the conclusion of your case. This can again be very complex and we often work closely with Independent Financial Advisors as well as our leading Court of Protection department (click here for information about the Court of Protection team) to give you the best advice on the most efficient way to receive and the invest this money.
We will advise you about the benefits of periodical payments should this situation arise but, in summary, they provide our clients with the security of knowing that there will be enough money available to help them meet their needs, such as care costs, for their entire life. It is quite common for a lump sum and periodical payments to be agreed by way of settlement.
Deciding whether or not to pursue a medical negligence NHS compensation claim can be a difficult choice for our clients. We understand that some people feel uneasy about NHS money being spent on medical negligence claims. Our view on this is that our clients are entitled to receive a reasonable standard of medical care. If care falls below this standard, the NHS needs to be held accountable, to learn from the mistake, so that it does not happen again to someone else, and to make sure that our injured client is afforded the necessary financial compensation to help them move forward with their lives even with a -serious injury.
The threshold to succeed with an NHS compensation claim is high and the tests of breach of duty and causation often difficult to overcome. This means that you need our leading legal team to fight your case but also only claims where there has been care below a reasonable medical standard (rather than a “gold-plated” top standard) will ultimately actually succeed.
Sometimes, even with a team of leading lawyers, medical negligence claims do not succeed because the medical experts we instruct do not think sub-standard care was received or, more often, they cannot prove that sub-standard care caused an avoidable injury. If this happens, we will explain the reasons carefully to you. Our clients regularly tell us that even if they cannot succeed and obtain compensation it is a comfort to them to know that the medical care was fully and properly investigated and the cause of injuries explained to them.
Medical negligence litigation funding can, unfortunately, be complex. The information set out below sets out the basic principles but our solicitors will be able to explain this to you, in much more depth, depending on your own funding options. Call us today to discuss this.
In England and Wales, the general rule for litigation is that the losing party pays the winning parties legal costs for pursuing the case. These legal costs are separate to any compensation you might receive if you win your case. For example, a medical negligence claim settles for £250,000 with total legal costs of £50,000. The Defendant NHS Hospital Trust (through NHS Resolution, the organisation that acts on NHS Trusts’ behalf) pays the Claimant £250,000 in compensation and then, after negotiation, agrees to pay £45,000 of their total legal costs.
Claimants are not usually at risk of having to pay the Defendant Hospital’s legal costs until the case is issued at Court (at the end of the Pre-Action Protocol period) so it is important at this stage that they have insurance in place in the event that the claim is unsuccessful and, in accordance with the General Rule, they have to pay the other side’s legal costs. There may be some additional protection against this from a Government system but this is uncertain.
Types of Medical Negligence Funding:
Legal Aid Agency - Public Funding
Minton Morrill solicitors has a specialist Legal Aid franchise to advise clients in clinical negligence cases. Over recent years the government has substantially restricted the types of cases where legal aid funding can be obtained. In medical negligence claims this is limited to birth injury or neonatal injuries to young children where an injury to their brain is sustained before, during or within 8 weeks of their birth resulting in disability.
An Application will be made to the Legal Aid Agency if a client meets their strict criteria and, if accepted, funding will be provided to investigate whether a claim can be pursued.
Public funding through the Legal Aid Agency is a good way of funding a medical negligence case because there will be no deductions from a client’s damages if the case ultimately succeeds (unlike No Win No Fee Agreements, see below) but the amount of money available from Public Funding may not be sufficient to fund the entire case.
Our solicitors regularly obtain Public Funding for our clients with successful Applications.
No Win No Fee Agreements
Lawyers call No Win No Fee Agreements Conditional Flee Agreements or CFAs. Minton Morrill may be able to offer you a CFA if you do not have any other form of funding available if we are optimistic that there are reasonable prospects your case will succeed.
Under a CFA, we are only paid for our legal work if your case succeeds. If this happens, following the General Litigation principle, the Defendant should pay your legal costs for the time we have spent investigating your claim and you pay a separate success fee.
If the case is unsuccessful, you do not pay us anything and our legal costs are lost.
Because of the risk that we will not be paid anything if a case is unsuccessful, we charge a success fee in the cases that are successful, in accordance with Government rules.
The success fee is capped at 25% of two specific types of compensation: General Damages (for the pain, suffering and loss of amenity a client endures) and Past Losses (for example, past loss of earnings, past medical costs, past care costs). The 25% only relates to these two heads of damage and not to often more extensive future damages.
For example: Mr A receives £100,000 in compensation as a result of sub-standard care during a surgical procedure leaving him unable to return to work.
He receives the following damages:
- General Damages for pain, suffering and loss of amenity: £20,000
- Past Losses for loss of earnings, expenses and family care: £10,000
- Future Losses for predicted loss of earnings and care needs: £70,000
The total success fee would be 25% of £30,000 amounting to £7,500 (incl VAT)
A success fee is only paid at the end of a case if the claim is successful. As well as being capped at 25% of General Damages and Past Losses there is another important rule that stipulates the success fee can never be more than 100% of the legal costs incurred.
For example: Mr B’s family receive £100,000 as a result of his death from sub-standard medical care. His Estate & family receive the following damages:
- General Damages for Mr B’s pain, suffering and loss of amenity: £45,000
- Past Losses for his loss of earnings, expenses and family care: £35,000
- Future losses for loss of dependency on Mr B: £15,000
The success fee is 25% of £80,000 amounting to £20,000; however, the legal costs amount to £17,500 so the success fee would be reduced to £17,500 (including VAT).
Our practice is to be very open with clients about success fees and we will explain how these operate at the outset of a clinical negligence investigation with you. The logic of this regime, introduced by the Government in 2013, is that success fees pay for the cases that are unsuccessful (where we are paid nothing) so that we can keep offering CFAs to new clients and maintain access to justice to investigate medical negligence. Before 2013 the Defendant paid the success fee rather than this being paid by the Claimant.
We recommend that clients pursuing medical negligence claims with a No Win No Fee Agreement have an insurance policy in place to protect them in the event that the claim is unsuccessful. In such circumstances, the insurance would cover the costs of disbursements and, if the claim proceeds to Court, the Defendant’s legal costs.
Disbursements include, for example, the cost of obtaining your medical records, independent expert medical reports and Court fees. We usually fund these for you during your litigation although sometimes clients will pay for some of these. As per the General Rule set out above, the unsuccessful party pays the winning parties costs in England/Wales so it is important that our clients have sufficient protection against this.
We typically liaise with an insurer to obtain an After the Event insurance policy to get the correct level of cover for our clients. There is no up front cost for this insurance but, in a similar way to the CFA regime, if your medical negligence compensation claim succeeds you will pay an insurance premium at the end of your case out of the compensation received. If the claim does not succeed, you do not pay for the insurance.
Legal Expenses Insurance
Some of our clients fund their clinical negligence case through existing insurance policies, known as Legal Expenses or Before the Event insurance. This type of insurance is often available through home contents, motor or travel insurance cover. Some banks and credit card companies also provide legal expenses insurance for their customers.
Some Legal Expenses insurance specifically excludes medical negligence cases from the scope of their policies and others may have specific panel solicitors that the insurer says must handle the case for their policyholders. The best thing to do is find the policy and speak to us about what it says. Our expert lawyers will often speak to the insurer, with a client’s consent, to see what can be done with the existing insurance policy.
Usually, if the insurance policy covers clinical negligence claims, and our team of solicitors are able to act for you, there is a limit of either £50,000 or £100,000 available to investigate a case. Once this cover is exhausted, other forms of funding such as CFAs may be required to pursue the case, particularly if the Defendant has disputed liability.
Trade Union Membership
Trade Union membership, particularly of larger Unions, may offer access to Legal Expenses insurance to fund a medical negligence investigation. It would be sensible to check your eligibility for this with your Trade Union before speaking to our legal team.
Sometimes our clients fund their medical negligence claim privately, paying us on a monthly basis for the work we do and for the disbursements we incur. This is quite an unusual situation but one that does occur so speak to us if this is a preferred option.
If you or a loved one has suffered suspected poor medical treatment contact our team of solicitors today to discuss your case. Call us on 0113 245 8549 or complete the form below.