Clinical negligence

Most people are happy with the treatment and care they get from healthcare professionals. But sometimes mistakes can happen.

If your care has fallen below an acceptable level and has caused injury or harm, you may want to get legal advice and think about making a claim for clinical negligence. The aim of a claim is to get financial compensation.

A clinical negligence claim can take a long time. You will need to find a specialist solicitor who will discuss your case. The solicitor will need to see your medical records and get advice from an independent medical expert.

A claim for clinical negligence must be made within three years of the mistake happening. The process of making a claim varies slightly around the UK. Your solicitor will put forward your case, and the person who made the mistake will have the chance to respond. After this, a court date is set, but most claims are settled before a court hearing.

You may find it helpful to contact one of the organisations that provide information and support to patients making a claim.

When you might make a clinical negligence claim

Most people are happy with the treatment and care they get from healthcare professionals. However, if the care you have had was sub-standard and has caused injury or harm, you have a legal right to financial compensation for the harm caused and any losses or expenses that result from it.

We can’t advise you whether it is right for you to make a clinical negligence claim. But we hope this information answers your questions and directs you to other organisations that can help and support you.


The difference between a clinical negligence claim and a complaint

The aim of a clinical negligence claim is to get financial compensation after damage has been caused by sub-standard care or treatment. Damage can include physical and psychological injury as well as financial losses, such as loss of earnings and the cost of future care that may be needed.

Both a clinical negligence claim and a complaint should give you information about what went wrong. They may both lead to a formal apology or to changes in practice to stop it from happening again. But a successful complaint will not provide any financial compensation.

If you believe that you or your family has suffered, or will suffer, because you have not been treated properly, you should think about getting specialist legal advice.

In Scotland, a clinical negligence claim is only about financial compensation and not about getting an apology or change in hospital practice.


Why you might want to make a claim for clinical negligence

The most common reason for a clinical negligence claim is a delay in diagnosis and treatment. This may be because there was a delay in referring you, an administrative error or a mistake in a laboratory.

Other reasons include:

  • being given the wrong diagnosis
  • being given the wrong treatment
  • being given treatment that was badly planned and has caused avoidable complications
  • being given treatment without your consent
  • not being told about the risks of treatment
  • not being given appropriate follow-up, which has led to a recurrence of the cancer being diagnosed late or missed.


Things to think about before making a clinical negligence claim

A claim for clinical negligence can go on for a long time. It can be stressful and use a lot of your time and energy. And you may already have other things to cope with if your health is affected. It can also be expensive, although you may be able to get help with some of the costs.

Before starting a claim, you may find it helpful to talk about your concerns with the healthcare professionals involved or your local patient advisory service (see below), or you can use the NHS complaints procedure. These may lead to the result you are looking for.

It will help to get advice from a solicitor about what a clinical negligence claim might be able to achieve. Many specialist clinical negligence solicitors will be happy to have an initial discussion with you free of charge.

The Law Society and Action against Medical Accidents(AvMA) (see below) will be able to tell you about clinical negligence specialists in your area. Their details are listed at the bottom of this page.

The solicitor will make an assessment of your situation and decide if you have a strong enough case to take on. If they think it would be sensible to investigate, the first steps are to:

  • get a copy of your medical records
  • make a statement about what happened
  • get the advice of an independent medical expert.

This information will help the solicitor to predict the eventual outcome of your case.


Asking for your medical records

You will need a copy of your medical records and possibly copies of scans and x-rays. You do not have to give a reason for asking to see your records.

Send your request to the GP Practice Manager or the hospital’s Medical Records Officer. You will need to include a copy of your driving licence or passport and proof of your address, such as a recent utility bill. A copy of your records should be given to you within 40 days. The cost may vary, but will be no more than £50. NHS Choices can give you more information on this.

Parents can apply to see their child’s medical records. If the child is mature enough, the healthcare professional will check if the request is made with their agreement.

If you are asking for the records of someone else, you will need their written permission. Or, if you have the legal authority to make health and care decisions on a person’s behalf, such as a Lasting Power of Attorney (LPA) or Welfare Power of Attorney, you will need to include a copy of this.

If there is no legal authority or if the person is unconscious or unable to communicate their permission, their health professionals have a duty to act in their best interests in deciding what information should be released.

If you are asking for the records of someone who has died, you will need to explain your relationship to them. If you were appointed an Executor by their Will, or have taken out Letters of Administration because they did not leave a Will, you should say so. In this situation the £50 limit on charges does not apply, so you may want to ask what the fee will be if there are a lot of records. It is also possible to limit your request by asking only for the records made after a certain date.


Recording your own account of what happened

It is a good idea to make a note of what you remember as soon as you start to worry that there may have been a problem with your treatment. Your solicitor will need as much information as possible to help them with your claim.

Make a record of everything you can remember about what happened. Ask your family and friends to do the same. You should include anything that is relevant to your treatment. If you have been through the complaints procedure, you should include any correspondence you may have had, such as letters, emails and records of phone calls. You should also keep a record of any costs involved or any loss of earnings.


Getting another medical opinion

Your solicitor will ask an independent medical expert if they agree that there has been clinical negligence. The expert will look at your medical records, your statement about what happened and anything else that supports your case. If the medical expert agrees, the solicitor will go ahead with the claim.


Timing

Usually, you must start the claim within three years from the date you think that a mistake may have resulted in an injury. The Court rarely extends this to longer than three years.

For a child, the three-year period does not begin until their 18th birthday (or their 16th birthday in Scotland). In England and Wales, a parent can make a claim on their behalf, acting as their litigation friend. In Scotland, the claim would be made by a parent acting as The Guardian or a Court Approved Guardian. In Northern Ireland, a parent or legal guardian is called the next friend.

For adults who are unable to make their own decisions (lack mental capacity), the three-year limit may be suspended.


Making a clinical negligence claim

Claiming in England, Wales and Northern Ireland

Once your solicitor has established that you have a valid claim, they will write to the defendant. This is the hospital or doctor concerned. The letter is a called a Letter of Claim and it sets out your version of the facts and your allegations about what went wrong.

The defendant has four months (three months in Northern Ireland) to investigate the allegations and send a detailed Letter of Response. They may accept or deny responsibility.

If they don’t accept responsibility, legal proceedings may start and a date will be set for a trial in court.

Claiming in Scotland

Your solicitor will raise your claim in the Court of Session in Edinburgh. This is followed by a notice period of 21 days. The person or hospital you are claiming against is called the Defender. They have three days to advise the court that they wish to defend. They then have a further seven days to set out their case.

There is then a period of eight weeks called the Adjustment Period. During this time, both sides of the claim will consider the case. You will usually meet with your legal team, often in Edinburgh. An eight-week extension to the Adjustment Period can be requested by either party.

After this, a decision will be made about whether the claim can go to a full hearing in court.

Clinical negligence claims rarely end up in court. Many cases are settled before legal proceedings are started. Those that are started are usually settled before trial. Both sides are encouraged to settle the case quickly to avoid extra costs.


Funding your clinical negligence claim

Your solicitor will talk to you about the legal costs and will discuss the best way to fund your claim. You may be entitled to some help.


Private funding

You may be able to pay for the legal costs yourself. A clinical negligence claim can be very expensive, so this is unlikely to be a choice for most people. If you lose, you may also have to pay the other side’s costs. Your solicitor can advise you about the likely cost of making a claim and your chance of winning.

Legal expenses insurance

If you have legal expenses insurance, and your solicitor believes your claim has reasonable prospects of success, your insurer will pay for the work which needs to be done up to an agreed hourly rate. Many people do not realise they have this insurance, which may be an add-on to your home contents policy, for example. Your solicitor will be able to help you check.

If you’re a member of a trade union, you may be able to get financial help from them.

‘No win, no fee’ agreement

A solicitor may agree to act for you on the basis of a ‘no win, no fee’ agreement. In England, Wales and Northern Ireland this is called a Conditional Fee Agreement, and in Scotland it’s called a Written Speculative Fee Agreement. This means that you don’t pay your solicitor if they lose the case.

Medical experts are not allowed to act on a ‘no win, no fee’ basis. Your solicitor will talk to you about how their fees can be paid without leaving you at risk of being out-of-pocket.

Your solicitor can also arrange an insurance policy to cover any risk of having to pay the other side’s costs if you lose. This is called after-the-event insurance.

Legal aid

In England and Wales, legal aid (public funding) is only available for a very limited number of clinical negligence cases involving children who have suffered a birth injury.

You may be able to get legal aid if you live in Scotland and have a low income. In Northern Ireland you may be able to get limited help. Your solicitor can give you more advice.


Your feelings when making a clinical negligence claim

Making a clinical negligence claim can be difficult and upsetting. It may be painful to remember what has happened, and to keep going over it.

Solicitors who deal with clinical negligence claims are used to dealing with people who have been injured. They will be keen to make sure you understand what is going on and will value your contribution. But if you wish, they can shield you from a lot of the day-to-day stresses of a claim.

If you still need medical care, you may find it hard to trust your healthcare professionals. You can mention this to them so they understand your worries. Making a clinical negligence claim will not affect any ongoing treatment or care.

You’re likely to feel lots of emotions and, for some people, these may be too much to cope with. Each person has their own way of coping with difficult situations. You may find it helpful to talk to family, friends or someone outside of your situation. Some people prefer to keep their feelings to themselves. There is no right or wrong way to cope. Our Online Community is a place where you can share experiences with people who know what you’re going through.

The organisations listed below may be able to offer you advice and support. You may find it helpful to talk to a counsellor who can listen and help you deal with your emotions. Our cancer support specialists can give you advice about finding a counsellor in your area.


Useful organisations

England

Patient Advice and Liaison Service (PALS) can give you information about the NHS complaint procedure. You can find your nearest PALS office on the NHS Choices website , by asking your GP or at your local hospital.

The Law Society (020 7242 1222) aims to improve access to legal services and maintains a list of accredited specialist clinical negligence solicitors in England and Wales.

Scotland

The Patient Advice and Support Service is available from any Citizen’s Advice. The staff there can guide you through the different stages of making a complaint.

The Law Society of Scotland (0131 226 7411) aims to improve access to legal services and maintains a list of accredited specialist clinical negligence solicitors in Scotland.

Wales

Patient Advocacy services are available through Community Health Councils. They can help you make a complaint about NHS services or your NHS practitioner.

The Law Society (020 7242 1222) aims to improve access to legal services and maintains a list of accredited specialist clinical negligence solicitors in England and Wales.

Northern Ireland

The Patient and Client Council (0800 917 0222) can help you make a complaint about NHS services.

The Law Society of Northern Ireland (028 9023 1614) aims to improve access to legal services and maintains a list of accredited specialist clinical negligence solicitors in Northern Ireland.

National organisations

Action against Medical Accidents (AvMA) offers individual guidance and information about the complaints procedure via their helpline (0845 123 2352) and casework service.

The Patients Association provides an information and signposting service via their website and helpline (020 8423 8999).

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How treatment is planned

A team of specialists called a multidisciplinary team (MDT) will meet to plan your treatment.

Getting a second opinion

There are many reasons for wanting a second opinion about your treatment. Speak to your specialist or GP.

Making a complaint

Talking to your healthcare team can make it easier to cope. If you find talking difficult, there are things you can do.