This information is about clinical negligence. This is when care provided by a healthcare professional falls below an acceptable standard and results in physical or mental injury, or death.
Most people are happy with the treatment and care they get from the healthcare professionals looking after them, so when mistakes are made it's an extremely distressing situation to be in. If injury has occured, some people may decide to seek legal advice and bring a clinical negligence claim.
We can't advise you about whether it's right for you to make a legal claim, but we hope that this information answers your questions and directs you to other organisations that can help and support you.
Difference between clinical negligence and making a complaint
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A clinical negligence claim is different from making a complaint about the treatment or care you've received. In a clinical negligence case you are asking for money to compensate for injury or death. The main objective of making a complaint is usually to get answers about what went wrong, receive an apology or be told that changes to practice will be made to prevent it from happening again.
Possible reasons for clinical negligence
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Sometimes negligence may happen if:
there has been an unacceptable delay in arriving at a diagnosis
the incorrect treatment has been given
there has been an unacceptable delay in making a referral to a specialist doctor
there has been a failure to monitor treatment properly.
Some points to think about
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A claim for clinical negligence may go on for a long time. The process is often stressful, and can take up a lot of your time and energy. It may also be costly. You may already have other demands to cope with if your health is affected. So it’s always a good idea to think it through carefully before you begin and to get some advice.
You may find that the outcome you want can be achieved by raising your concern with healthcare professionals, your local PALS (Patients Advice Liaison Service) or using the complaints procedure.
Generally the more serious the consequences of an error, the more reasonable it would be to consider getting legal advice about bringing a clinical negligence claim.
The Law Society and Action Against Medical Accidents (AvMA) have a referral panel of solicitors specialising in clinical negligence and who are accredited by them.
How soon do you have to make a claim?
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You must start proceedings within three years from the date you knew, or ought to have known, that a mistake may have resulted in an injury.
The Court has the power to extend the three-year period when it's reasonable to do this, but this happens rarely. The three-year period doesn't begin to run until a child's 18th birthday. A child therefore has until they're 21 to begin a legal claim.
Making a clinical negligence claim
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Choosing a solicitor
If you think you have a case for a clinical negligence claim, you’ll need to get a solicitor who is an expert in this field.
The Law Society and Action Against Medical Accidents has details of accredited clinical negligence solicitors and can help put you in touch with one in your area.
Ask your solicitor about their experience in investigating and handling clinical negligence claims, especially if they've had any similar claims to your own case.
Your medical records
You will need a copy of your medical records and possibly copies of scans and x-rays. You don’t have to give a reason for asking to see your records and they should be given to you within 40 days of your request. You will usually have to pay for this service. It’s usually under £50 depending on the amount of information in your records.
Your solicitor will seek an opinion from an independent medical expert to establish whether or not there is a potential claim for negligence. The expert will base their opinion on your medical records, your own statement about what happened and any other documentation that supports your case. If the medical expert supports your case the solicitor will go ahead with the claim.
Making a claim
Your solicitor then writes a letter about your claim to your hospital or doctor. They have three months in which to carry out an investigation and reply to the allegations of negligence. They may accept or deny responsibility. If they don’t accept responsibility you may need to go to court.
Clinical negligence claims rarely end up in court. Most cases are settled after all the investigations are completed and before legal proceedings are started. Both sides are encouraged to settle the matter quickly and to avoid running up extra costs.
Your solicitor will talk to you about how your legal costs will be covered. There are different ways of doing this, and you may be entitled to some help with your costs:
You may be insured for legal expenses under an existing insurance policy. Check all your policies.
Public Funding - this used to be called Legal Aid. This is based on your income and any savings you have, but very few people qualify for this. Your solicitor can say whether this is an option for you.
'No-win, No-fee’ agreement – you don’t pay your solicitor if they lose the case. There are still other costs to pay however, so your solicitor usually backs this type of agreement with an insurance policy to cover these.
If you’re a member of a trade union you may be eligible for help with the costs of a legal claim from them.
Paying for it yourself – a clinical negligence claim can be very expensive so this isn’t likely to be an option for most people. Your solicitor can advise you about the likely cost of bringing a claim.
Taking out a claim for clinical negligence can be a difficult and distressing experience. It may be painful to be reminded of what has happened to you and to have to frequently go over it.
If you still need medical care you may find it hard to trust the healthcare professionals looking after you. It may be helpful to mention this to them so they can understand your concerns.
You’re likely to experience a number of different feelings and at times these can be overwhelming. Each person has their own way of coping with difficult situations. Some people find it helpful to talk to friends or family, while others prefer to get help from people outside their situation. Some people prefer to keep their feelings to themselves. There’s no right or wrong way to cope.
The organisations listed below may be able to offer you advice and support. You may find it helpful to talk to a trained counsellor who can listen and help you deal with difficult emotions. Our cancer support specialists can give you advice about finding a counsellor in your area.
Action against Medical Accidents
44 High Street, Croydon CR0 1YB
Helpline 0845 123 2352 (Mon-Fri, 10am-5pm)
An independent charity that works exclusively for the victims of medical accidents. A medical accident is classed as an injury caused as a result of medical treatment or a failure to diagnose an illness. AvMA provides free, independent advice and support, and has caseworkers who help people through the process of making a clinical negligence claim.
Law Society - England and Wales
113 Chancery Lane
London WC2A 1PL
Tel 020 7242 1222
Email via the website
The Law Society of Scotland
26 Drumsheugh Gardens,
Edinburgh EH3 7YR
Tel 0131 226 7411
The Law Society Of Northern Ireland
96 Victoria Street, Belfast BT1 3JZ
Tel 028 9023 161
Email via the website
All of the Law Societies aim to improve access to the law and can provide help with finding a solicitor.
Patient Advice and Liaison Services (PALS)
Provides information, advice and local support to help patients, families and their carers.
The Patients Association
PO Box 935, Harrow HA1 3YJ
Helpline 0845 608 4455 (Mon-Fri, 9.30am–5pm)
The helpline provides information on a wide variety of issues, ranging from finding local support groups for certain medical conditions, NHS services and support groups, to what patients are entitled to, making a complaint and listening to patients’ experiences. During busy periods or outside opening hours, an answering service is available.