How to make a medical negligence claim

When you or a loved one has suffered because of poor medical care, starting a claim may be the last thing on your mind. However, claiming compensation can help pay for rehabilitation and ongoing care, cover financial losses and give you some security for the future.

In this blog, our expert medical negligence solicitors explain how the claims process works and what to expect.

Do I have a valid clinical negligence claim?

To bring a successful medical negligence claim, you need to prove two overarching things:

1. Liability (responsibility for what happened)
2. The value of the claim

To prove liability, you will need to show both that:

• The care you received fell below the minimum acceptable standard; and
• That substandard care directly caused you an ‘injury’ (causing a new illness/injury, or made an existing condition worse).

It is important to know that a mistake or a poor outcome does not automatically mean you can make a claim. The claim must meet both of the above tests, and to do that it must be proven to the legal standard.

If you are unsure whether you have a medical negligence claim, the best first step is to speak to a specialist solicitor.

What is classed as medical negligence?

Medical negligence can arise from all kinds of treatment, from a routine operation to childbirth. Common examples include a doctor failing to diagnose a condition, a delay in treatment, or a mistake during a procedure.

You can also claim for medical negligence on behalf of someone else. This includes your child if they are under 18, or someone you have legal responsibility for because they lack mental capacity. If a loved one died because of medical negligence, the executor/administrator of the estate can also claim (and help bring a claim for dependents of the deceased), and our team can support families through the inquest process in some circumstances.

How long do I have to start a medical negligence claim?

There are strict time limits for medical negligence claims. If you miss the deadline, you are unlikely to be able to claim compensation.

In general, you have three years from the date the negligence occurred. However, medical negligence is not always obvious straight away; this is particularly apparent in misdiagnosis cases.

In fatal claims, it depends. The three years usually starts from the date of death, but that is not always the case.

The ‘date of knowledge’ rule

If you didn’t realise what happened in your care was substandard, or that your treatment caused the outcome you experienced, the three years may run from the date you became aware that there is a potential claim (known as your ‘date of knowledge’), rather than the date of the treatment.

Claims involving children

If a child is injured, they will have until their 21^st birthday to bring a claim. Practically speaking, their parent or guardian (or other appropriate adult) will help bring the claim until their 18^th birthday. If the child has mental capacity, they will take over when they turn 18.

Claims involving someone without mental capacity

Mental incapacity looks very different from person to person: someone could be in a coma or seem quite well but simply isn’t able to retain information or understand detail well enough to make decisions about a legal claim.

If the injured person cannot bring a claim themselves because of a lack of mental capacity, there is no time limit for someone to claim on their behalf. The impact of capacity upon limitation can be complex; the limitation period will restart if someone regains capacity, and you should take specialist advice on this.

How do I make a medical negligence claim?

Many people worry about going to court, but most medical negligence claims are resolved and settled before a trial.

Another common worry is that making a claim against the NHS is unethical. It’s important to remember that claiming not only helps you rebuild your life but can prevent the same mistake from happening to somebody else. Medical experts that your solicitor will seek input from are typically senior NHS doctors and are happy to work on these cases because they consider accountability to be important, and think these claims help improve standards of patient safety for the future.

From a practical point of view, here is what to expect when making a clinical negligence claim.

1. Your initial contact with our team

Our friendly team will talk through what happened and how it has affected you or your loved one. Senior lawyers will assess this and give you an honest view on whether your claim merits further investigation.

2. Building your case

This usually means:

• Obtaining your medical records from any relevant healthcare provider (like your GP and NHS Trusts);
• Gathering witness evidence;
• Obtaining important documents (for example, demonstrating a loss of earnings); and
• Consulting independent medical experts.

Our aim is to establish exactly what happened, how it affected your health and the full impact on your life.

3. Sending a Letter of Claim

Once we are satisfied your case is supported by evidence and likely to succeed, we send a letter to the defendant (the healthcare provider or organisation responsible) setting out your claim and, in broad terms, the compensation you are seeking.

4. The defendant’s response

The defendant has four months to respond, although their investigations sometimes take longer. We will take action where needed to keep your claim moving. They can admit full or partial responsibility (e.g. one of the legal tests above, but not both), or deny it. If they admit liability, they may make a settlement offer if enough information is available at that point. Otherwise, they will invite us to send evidence, when available, to prove the value of the claim so that negotiations can commence.

5. Considering the response and/or settlement offer

Whatever the response, we will talk you through your options.

• If the claim is denied in whole or part, this may involve seeking additional evidence or issuing court proceedings (see below).
• If an offer is made, we will advise you on whether it is fair.
• Where no offer is made, or it is too low, we can try to negotiate a better settlement based on what we think is reasonable, or recommend taking court action.

6. Issuing court proceedings

If we advise taking court action, we issue proceedings in your claim. We then prepare a number of documents, including the ‘Particulars of Claim’, and serve these on the defendant, typically within four months (though it may be longer in certain circumstances). Whilst defendants usually have 14-28 days to respond, it typically takes them longer to serve a defence due to the complexity of these types of claims.

There will then be a hearing, and the court sets a timetable, including a trial date. This depends heavily on court availability and the complexity of the case, so it could be anything from around 18 months after the defendant responds to much longer for more complex claims. Even at this stage, claims rarely reach a trial. This is because the timetable involves a series of deadlines where each party will disclose more and more of their evidence.

By the point of a trial, the issues still in dispute should have narrowed, and the parties should have a much better idea of how strong or weak their cases are on certain points. This should help encourage a settlement.

7. Pre-trial negotiations

Before trial, we communicate with the defendant and their legal team to try to agree on a settlement through direct negotiation or methods such as mediation. In most cases where supportive evidence was obtained in the initial investigation, this is successful.

8. Trial

In the unlikely event that your case does reach trial, we will make sure you have the best possible representation. We instruct at least one specialist clinical negligence barrister, and for the highest complexity, maximum severity cases, we usually recommend a senior barrister (often a King’s Counsel) alongside a leading junior. Trials are heard by a judge without a jury, who will make the final decision.

Do I need a solicitor to make a medical negligence claim?

There is no legal requirement to use a solicitor, but medical negligence claims are among the most complex types of legal claims, so it is recommended. These types of claims rely on detailed medical evidence and expert opinion, and the defendant is usually the NHS or an insurer with its own legal team.

A specialist medical negligence solicitor will understand the process and time limits, know which experts to instruct, and have the expertise and experience to tell you whether a settlement offer is fair. Read more about the benefits of using a solicitor.

How to choose a medical negligence solicitor

If you are considering making a clinical negligence claim, some of the key things to check are:

• Do they specialise in your type of claim? Clarify whether this is something they have experience in and isn’t just something they could technically help with.
• What’s their track record? Does their website include client stories? What are their reviews like?
• Are they regulated? Check that the firm is SRA-regulated, as this means you will be protected by professional conduct rules.
• Do they have the relevant accreditations? Being ranked in legal directories (Chambers and Partners and Legal 500) and being on the Law Society’s Clinical Negligence Accreditation Scheme is a good place to start. Accreditation to the panel of specialist charities and organisations such as AvMA (Action against Medical Accidents) is also a good trust signal.
• How do they charge? Most medical negligence lawyers offer a ‘no win, no fee’ arrangement (also known as a Conditional Fee Agreement), but it’s important to look into this properly. Ask for details about how much is taken from your compensation and what really happens if your claim is not successful.
• Will you have access to other experts? Some medical negligence claims require input from medical experts, rehabilitation professionals and barristers to advise on your claim. A law firm with reputable relationships can make a huge difference to a claim.
• Who will your point of contact be? Medical negligence claims can take several years to conclude. It’s worth looking for a firm with a good-size team, with plenty of support to ensure your claim progresses efficiently.

How is compensation calculated?

Every claim is different, and your compensation will depend on the impact the negligence has had on your life. It is made up of two parts:

1. General damages: broadly speaking, this is compensation for the pain, suffering and loss of quality of life caused by your injury
2. Special damages: compensation for the financial losses and costs you have incurred, or will incur, because of the negligence

This can include the cost of medical treatment, therapy and rehabilitation, care and support, loss of income, adaptations to your home (or having to buy a new one) and specialist equipment.

Beware of using AI to evaluate and value your medical negligence claim. There is no one-size-fits-all amount for these types of claims.

How can I fund my medical negligence claim?

Worries about cost stop many people from looking into a claim. Our team will talk you through your options and explain what might be the best route forward.

Funding options for clinical negligence claims include:

• Conditional Fee Agreement (no win, no fee). If your claim is successful, a substantial amount of your legal fees will usually be recovered from the defendant. Any costs that cannot be recovered, such as a success fee and any shortfall, can be paid from your compensation.
• Legal expenses insurance. This is often included with home or vehicle insurance, so it is worth checking your policies.
• Trade union funding. If you are a member, your union may cover some or all of your costs.
• Legal aid. This is only available in some cases involving children who suffered a serious brain injury during pregnancy, childbirth or in the first eight weeks of life.
• Private funding: paying for your solicitor’s time as you go. This is only used in exceptionally limited circumstances and is typically not recommended by us given the legal costs involved in these cases.

Some of the options are used together. No matter your financial circumstances, we will help you find the right option. Read more about funding a medical negligence claim.

How we can help

If you or a loved one has suffered because of negligent medical care, our specialist solicitors are here to help. We act for clients across England and Wales, and can meet with you in person or remotely.

For an informal, no-obligation chat with our Medical Negligence team, call 0117 325 2929 or fill out our online enquiry form.