At Maxwell Hodge we offer a range of legal services, including acting for our clients in claims for medical negligence. Below, we have set out a summary of Frequently Asked Questions that we find our clients typically ask when engaging in the new enquiry process for medical negligence claims, as we are aware that this can be fairly daunting, with various complex legal points to be discussed.
We are always on hand to provide further information as needed. We have included our contact details at the end of this editorial, for use by our clients and anyone else who may be considering pursuing a claim in medical negligence.
1. How do I know if I have a claim?
There are two main elements to a medical negligence claim, being causation and breach of duty:
- Firstly, the breach of duty element seeks to establish that a medical professional has acted negligently, meaning the treatment provided has fallen below the standard of care that is considered to be acceptable practice. This is measured using the ‘Bolam Test’, derived from case law, in which the Defendant must be able to show that any medical professional who was in the same position as them would have done the same, giving the same outcome. In those circumstances, a case would fail. However, if other medical professionals would not have acted in the same way, the matter would continue.
- Secondly, the causation element establishes whether any breach of duty has directly caused, or materially contributed towards, the harm and injury suffered by a Claimant. There are two types of causation in medical negligence matters; legal and factual causation.
Legal causation is determined on the ‘but for’ test – but for the negligence, would the injury still have occurred? It must be proved here that it is more than 50% likely that the injury was caused by the negligence. If the injury would have occurred anyway despite the negligent actions of the medical professional, it would be likely that the claim would fail.
Factual causation is proving that the injury was caused by the Defendant’s failure. The negligent acts cannot be too remote, must be sufficiently culpable and foreseeable to make the Defendant legally responsible for the injury.
You need to establish both breach of duty and causation to succeed in a claim in medical negligence.
Of course, these are complex, difficult points of law. Therefore, we utilise the opinions of medical experts to help establish breach of duty and causation.
2. What do I have to pay?
Firstly, you may have Before The Event (‘BTE’) Insurance, which is sometimes an optional extra on pre-existing insurance policies. It may be known as ‘Legal Expenses Cover’ or “Family Legal Protection”. If you think you have this insurance, please inform your Solicitor so that we may investigate whether the BTE insurance providers would be willing and able to fund your medical negligence claim.
If, after initial investigations and discussions regarding the matter, we believe there is no BTE Insurance and there is an actionable claim, we would offer you a Conditional Fee Agreement (‘CFA’), being the funding contract between us and yourself to pursue your matter. The CFA is a ‘No Win No Fee’ agreement, meaning that, as per the terms and conditions of the CFA, we would waive our fee if your claim was unsuccessful. This means that if you were to lose your claim, you would not pay anything unless you failed to comply with the terms of the agreement.
When entering into a CFA, we would always recommend applying for After-the-Event (‘ATE’) Insurance. In the situation that your medical negligence claim was unsuccessful, this ATE Insurance covers the costs of: –
- Any disbursements, for example, the medical expert reports needed to support your claim; and
- Any adverse costs orders from the Defendant.
As there is a risk in providing you with such Insurance, the ATE providers charge a premium which is deducted from any damages should you win your case. The amount of this premium is dependent upon the amount of damages you win i.e. the higher the award of damages, the higher the amount of the premium. Precise information on figures can be found on page 2 of your CFA. Please note that, like our success fee, this is only payable if your claim was to be successful.
Additionally, upon conclusion of a successful claim, we would seek recovery of your legal costs (i.e. Maxwell Hodge’s costs of running your claim) from the Defendant. However, there is almost always a negotiation to be had regarding legal costs and the actual recovery of this is most frequently around 70-80%. You would therefore be liable to pay the shortfall of any legal costs from any damages you receive. It is not always typical that we pursue the shortfall from clients and is it usually very proportionate, but please be aware that this is a possibility, especially if our advice is not adhered to.
Therefore, if your claim was successful, the amount you would pay out of any damages you receive is as follows: –
- A success fee of 25% of your general damages and past losses to ourselves;
- Irrecoverable ATE Insurance premium, figure dependant on damages; and
- The potential of any shortfall in the recovery of our legal costs from the Defendant.
In addition, any compensation paid takes into account any benefits that you may have received as a result of the injury you have sustained. Any benefits you have received as a result of a medical negligence claim are repayable at the successful conclusion of your claim and may be deducted from the damages award.
If you lose your claim: –
- You won’t pay us or the Defendant.
- You won’t pay us basic charges because you have entered into a NWNF.
- You won’t pay the Defendant because the insurance cover provided by ARAG will pay this and also cover your disbursements, such as the costs of a medical report.
So long as you accept and adhere to our advice and the terms of the CFA and ATE insurance then you will not, in practice, have to pay.
3. Who will my claim be against?
You can pursue a claim for medical negligence against any individual or any legal body that owes you a medical duty of care. This includes hospital trusts and private medical practices to doctors, nurses, dentists, cosmetic surgeons, medical care provided in care homes, and mental health care professionals.
4. How long have I got to pursue a claim?
There are time limits for bringing a claim. For adults (persons aged 18 and over), a legal claim has to be brought into court within either 3 years of the date of the alleged negligence, or, if later, 3 years from the date that knowledge is acquired that injury has been suffered due to the negligence of the Defendant.
Different time limits apply to children. Limitation runs from 3 years after their 18th birthday (i.e., the claim must be brought before they turn 21).
If you are bringing a claim on behalf of a deceased individual, usually a claim must be brought within 3 years from the date that they passed.
5. How long will my case take?
There is no set timeframe for a case unfortunately. Most medical negligence cases tend to take around 2-3 years, but can take longer if Court proceedings need to be issued. It is important that you are aware that this can be a lengthy process before you decide you want to pursue a claim.
6. What compensation will I receive?
In a medical negligence case in the UK, if your claim is successful, you may be entitled to various types of damages. This can include compensation for medical expenses, loss of income, pain and suffering, and in some instances, punitive damages. Punitive damages are considered punishment and are typically awarded at the court’s discretion when the Defendant’s behaviour is found to be especially harmful).
The compensation awarded is intended to address the losses and harm you have suffered as a result of the negligence, so the specific amount varies based on the circumstances of each case and the severity of the negligence.
7. Do I have to go to court?
The idea of attending court can be daunting, but very few medical negligence cases go to trial. Instead we often reach agreements through negotiation or mediation as the case is proceeding through the Court system. This helps save time and money for everyone involved and makes finding a resolution quicker and more agreeable.
8. Why do I need a medical expert?
We instruct medical experts to provide independent specialist advice regarding Breach of Duty, Causation and Quantum. Expert evidence is essential in assessing the prospects of succeeding with a legal claim for damages.
It is necessary to obtain medical reports from an independent medical expert who has both a specialist knowledge of the relevant treatment and also in relation to the litigation process.
Experts provide their advice on whether the treatment provided has been appropriate and delivered to an appropriate standard. Short fallings in treatment and advice given can be identified.
This enables us to assess whether there is sufficient grounds to proceed with the matter.
Expert reports are used to support the claim and their informed opinion is invaluable as the matter progresses.
9. What is the difference between a complaint and a legal claim?
The Medical Negligence Test
The onus is on the Claimant to prove the case for them to be successful in a Medical Negligence claim.
The test for Medical Negligence is a cumulative test, and is in three main stages. In other words, if you fulfil stage 2 but not stage 1, a claim will not succeed. Those three stages are as follows: –
- Breach of Duty – this stage examines the standard of care provided to the Claimant. This is assessed with independent expert evidence from a reasonably skilled doctor in the same field as the doctors who were providing care to you at the time of the events causing concern.
- Causation – the test for causation is a complex one and there are a number of different types of causation that may be established. Simply put, we need to be able to prove, that more likely than not, the Claimant would have had a better outcome if a breach or breaches of duty had not occurred.
- Quantum – this is the value of the claim in monetary terms. The claim must be of sufficient value to justify us proceeding.
When areas of concern have been identified a written letter of complaint may be sent to the proposed Defendant.
A letter of complaint outlines the areas of concern regarding an individual’s treatment and presents a series of questions.
When the complaint response is received this may well contain some admissions of short fallings and may also provide an apology.
Assurances that lessons have been learned may also be given. A plan of action will hopefully be put in place to minimise the possibility of similar things happening in the future. This may be considered to be the best outcome.
There may well have been an acknowledged Breach of Duty, however after applying the Medical Negligence test it is considered that there is not sufficient prospect of success to justify in proceeding with a legal Claim for damages.
To pursue a legal Claim for damages the medical negligence test is applied and after considering all the information available to us we must consider that there is a greater than 50% chance in succeeding with a legal Claim for damages in order to proceed.
10. Why do you need my full medical records?
In order to assess whether we believe you have a chance at a successful claim, we must first obtain all of your medical records and review them. This is to see if there are any pre-existing issues that could potentially complicate the claim. Additionally, the medical records also assist in assessing any time lengths between referrals or any potential delays. It can also help us identify the correct Defendant and to confirm the relevant limitation period. If we go on to obtain an expert opinion on your case, they will also want to review your medical records to be able to properly advise.
The records are the most important documents in the claim as they record what has happened and often why this has happened. The experts will use the records to determine if there is a claim or not.
If a case goes to court, then the records will need to be paginated and both parties will have a complete set. These are then used by the experts and the Court.
11. How will a claim affect my treatment?
At Maxwell Hodge, we are here to help you seek justice whilst ensuring your well-being remains a top priority. In most cases, pursuing a claim for medical negligence should not directly impact the quality or availability of your care. Healthcare professionals are typically focused on providing necessary medical treatment based on your medical condition rather than your legal actions.
If you have any further queries, please contact one of our Paralegals on the below;
Julie Sowery
Email: juliesowery@maxweb.co.uk
Telephone Extension: 3009
Lily Lammond
Email: lilylammond@maxweb.co.uk
Telephone Extension: 1510
Yasmin Perry
Email: yasminperry@maxweb.co.uk
Telephone extension: 1511
