When we’re injured or ill, we trust medical professionals to give us the care that we need. Whether we need treatment, medication, surgery, or guidance, we rely on professionally trained professionals to diagnose us and help solve our problems. Sometimes, those professionals get things wrong.
Innocent mistakes can happen, but medical negligence has a broad definition that covers those mistakes and other issues. Sometimes, the professionals get things wrong because they haven’t listened carefully. Sometimes, they haven’t considered all the options.
Sometimes, they’re distracted. Sometimes, they’re tired. Sometimes, they let their personal views and judgments affect the way they look after their patients. Medical professionals are human, but so are the patients that might suffer because of their negligence.
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Medical negligence, or clinical negligence, refers to a situation where an injury happens as a result of medical treatment. It can also cover an incorrect diagnosis or a situation where a medical problem was missed. If mistakes were made and you’re suffering because of them, you could claim for medical negligence.
Medical professionals should always get informed consent before treatment, except in an emergency situation where consent can’t be given. You may also have been the victim of medical negligence if you weren’t made fully aware of the risks of the treatment you received.
The meaning of medical negligence isn’t as complicated as you might think. The definition is ‘a breach of the duty of care, resulting in physical or mental harm’. Breaches of care may be accidental or deliberate, though most of the time, they’re accidental. Sometimes the impact is minor, but other times it’s much more severe. In some cases, medical negligence can lead to lifelong disability or death.
In order to make a claim for medical negligence compensation, you must prove that the duty of care has been breached. For this to be the case, the level of care you received must be below the expected standard from a competent and skilled professional in that area and at that level.
Though the definition is clear, there’s no exact science to deciding if a claim should be successful. Even with the best treatment and the right care, human bodies are unpredictable. Some people don’t heal as well as others, and some illnesses or injuries develop in unexpected ways. Sometimes treatments aren’t successful, and that’s not always because of medical negligence.
If you believe that you’ve suffered mentally or physically as a result of medical negligence, you may be entitled to claim compensation for any losses you’ve experienced.
Suppose you’ve suffered as a result of medical negligence. In that case, you may be able to claim compensation for the injury or illness, any mental distress, and any loss of income or earnings.
You’ll receive what’s described as ‘general damages’ for pain, suffering, and loss of amenity (the impact your condition has on the way you live your life), including loss of earnings. Meanwhile, you might also receive ‘special damages’ for any other financial loss.
Injuries must be assessed and valued. A more severe injury will result in a much larger compensation pay-out.
If the impact of medical negligence is severe, then you may be left with a lifelong condition or permanent disability. In the most extreme situations, medical mistakes can lead to the death of the patient.
The severity of your injury will determine the size of the pay-out you receive. The pay-out does not need to improve your life beyond where it originally was but should compensate you to balance out the losses that you’ve faced.
Even relatively minor injuries, as a result of medical negligence, can result in a compensation pay-out. If you’ve suffered and can prove that someone was at fault, you may get some financial compensation.
Minor psychological damage, like anxiety or trouble sleeping, could lead to compensation of up to £5,000. Minor injuries may lead to compensation pay-outs of £1,000 or more.
The value of the compensation you’ll receive will be impacted by several different factors. The extent of your injuries must be considered, along with the psychological impact of what you’ve been through. You should be compensated for current and future loss of earnings, as well as any new expenses like medication, care costs, or travel costs as a result of your condition.
For a minor injury that lasts just a short time, with no lasting psychological impact, you can expect to receive compensation of around £1,000. Claims for pain and suffering could be much higher, with the most severe cases resulting in pay-outs of up to £200,000.
Claims for the amputation of one limb may be around £75,000-£100,000 in value. You could receive up to £85,000 for severe psychological damage, or more than £3,000 if – for a short while – you were left believing that you might die.
You might not expect that pay-outs for deaths aren’t as high as many other types of pay-out. This is because the money doesn’t need to cover any ongoing costs. Those left behind will no doubt be extremely upset and angry, but pay-outs for deaths can be as low as around £1,000. Even in cases where death takes a while, and the patient is conscious and aware, compensation may be less than £20,000 plus up to £10,000 for the funeral.
Overall, the average medical negligence compensation pay-out is around £50,000.
It is possible to make a compensation claim if medical negligence results in the patient’s death. The amount you’ll receive will depend on how the patient experienced their death. If the patient became immediately unconscious and died with minimal suffering, the compensation pay-out could be as low as around £1,000 in total. If the patient suffered for a while before their death, the pay-out could be up to £20,000 or even higher.
Compensation pay-outs after someone’s death can also cover their funeral costs.
A claim for death due to medical negligence should be started by a named executor on behalf of will beneficiaries. Claims are brought on behalf of the estate, so any compensation that is awarded will become part of that estate. If there are no will executors, an administrator can take control.
Family members can also make their own compensation claims. This claim can cover the financial loss if they were financially dependent, as well as psychological distress. There are existing standards for these types of claims. If the deceased is a child under the age of 18, parents can claim around £15,000. The same figure applies if someone is claiming for the loss of their spouse or civil partner. Additional compensation may be applied on top of the standard figure if you can demonstrate the further impact of the loss of your loved one.
If you’ve suffered as a result of medical negligence, you’re legally entitled to make a compensation claim. You may choose to make a formal complaint before you seek compensation, but you’re not legally obliged to. Often people choose to make a formal complaint as it can help them to gather more evidence and to gain a better understanding of exactly what went wrong and who’s to blame.
Even if you start a compensation claim, you’re still legally entitled to make a complaint through the NHS. Investigations should continue, even whilst your claim is ongoing unless a judge decides otherwise.
You must start your compensation claim within three years of the medical negligence event. Alternatively, if it took longer to realise that negligence had occurred, your claim must start within three years of realising.
If a child has suffered medical negligence, the three-year countdown won’t start until their 18th birthday. This gives them three years, as an adult, to make their own claim.
Medical negligence claims take time, so it’s important to start as soon as you possibly can. Some solicitors won’t start working on a case that’s more than two years old, as it takes so long to prepare a case and go through the compensation claims process.
Most compensation claims for medical negligence follow the same rough process. The length of time varies, and no two cases are the same.
The claims process starts with the initial contact and ends when compensation is awarded, though there are several different steps along the way that need to be followed in order. Often, cases don’t even reach court as agreements happen earlier on.
The clinical or medical negligence claims process starts when you first seek assistance. At this stage, you might get some free advice before you decide to take things further.
If you want to claim compensation for medical negligence, the first step is usually to speak to a solicitor or a claims management service. They’ll prepare your case and represent you. You can discuss payment options and how your case will be funded.
You’ll need as much evidence as possible. Evidence increases your chance of success. Making a formal complaint to the NHS is a useful way to get existing evidence that you might not otherwise have. You don’t just need evidence to show what happened, but also to show how it’s affected you. Keep receipts, invoices, documents, letters, and notes about any pain or difficulty you might have suffered.
You should have evidence that shows the impact the negligence has had on your life. You may require additional care or might need to attend regular appointments to keep a new condition in check. It could be that you’ve got extra prescriptions to pay for or that you’ve needed to take time off work. You could be in a situation where you can no longer enjoy a hobby that once made you happy or could be left sterile and unable to have the family you’ve always planned.
Medical negligence can have many different results and can affect everyone differently, so it’s important that your evidence reflects your financial and emotional loss.
If it’s thought that you have a valid case and there’s a good chance of a successful claim, a solicitor or claims management service will take you on as their client. At this point, they’ll carry out initial research. There may be up-front charges whilst your solicitor decides if they want to go ahead with your case. After some initial research, they may decide that success is very unlikely.
If your representative wishes to continue after they’ve done the initial research, there may be a need for more research and for more evidence to be collected.
Your representative will need to access your medical records. This will provide important information that’s needed to make a valid claim. Once records have been reviewed, it must be shown that a breach of duty occurred. It must also be shown that a breach of duty led to harm of some kind.
After an initial review, your representative is likely to approach the people you’re claiming against. At this stage, the defendant may accept liability and agree to an out-of-court settlement.
Assuming that the case needs to go to court, in-depth preparations can start. Additional experts are usually involved in this part of the process, preparing their own reports that will add to the available evidence. You may need to attend further medical exams, so these additional professionals can evaluate your current health and your recovery.
By this point in the process, the defendant is likely to be aware of the claim that you’re making against them. They may be beginning to prepare their own report and may also need to gather witness statements or request that you attend a few assessments.
Once evidence is gathered, your claim will be given a value. This shows how much money you should expect for everything you’ve been through. Then, the claim will be presented to the defendant. The defendant will find out what you’re claiming for, and they’ll have their chance to see the evidence. They’ll then have some time (usually four months) to prepare their defense and decide if they’d like to go ahead with contesting your claim. Otherwise, they may decide that they’d like to admit liability.
If the defendant doesn’t wish to settle out of court, your case will go to court at this point. Usually, this part of the process takes 1-2 years to complete.
Court proceedings typically involve a lot of back-and-forth negotiation. Ideally, both parties will come to an agreement without the judge needing to make a final decision.
You don’t need a solicitor to make a claim for medical negligence. You could also choose to use a claims management service or choose to be your own representative.
If you don’t want to contact a solicitor immediately, you can choose to make a formal complaint to your medical provider. They may accept liability and offer financial compensation. You might only need to seek legal help if they don’t accept liability.
Though you don’t legally need to use a solicitor, it’s usually very wise to do so. They’re the experts, so you’ll have more chance of your compensation claim being successful. The amount of work required for a compensation claim is also too much for most people to manage on their own. In short, without the help of a solicitor or claims management service, you’ll likely be in over your head.
The compensation claims process will be led by your chosen legal representative. This is usually a solicitor. They’ll take control and guide you through the process, so you don’t need to worry about doing it all on your own. You may need to provide evidence and could be asked to attend health assessments and appointments with selected professionals.
Your chosen solicitor will gather any evidence, value your claim and make reports. They’ll also deal with back-and-forth communication with the defendant. If an out of court settlement can’t be agreed upon, the compensation claim will go to court. Once your claim’s gone to court, a judge will decide whether compensation should be awarded. The judge will also decide how much compensation should be paid, taking into account any valuations made by yours and the defendant’s representatives.
You usually don’t need to pay money in advance before you can make a claim. Most providers will work on a No Win, No Fee basis.
Some solicitors will ask for an up-front payment that’s relatively small but could still be difficult to find if you’re on a low income. This payment covers time spent on their earliest research whilst they decide if they want to take on your compensation claim. Once they’ve decided to go ahead, the rest of your fees should be delayed until your compensation pay-out is finalised.
You may have legal expenses insurance, which could come as a separate policy or as a benefit of other insurance like your house or car cover. If you use legal expenses insurance, you may have a limited list of solicitors that you can choose to represent your case. Always try to find a solicitor that’s a specialist in medical negligence.
The amount of compensation you can claim will depend on your unique situation. Your claim will be valued according to the severity of your injury, any psychological effects, any other financial loss, and any additional ongoing expenses. Someone with a minor injury that might take a week to recover from will, for obvious reasons, get significantly less than someone that’s left permanently paralysed.
The average NHS medical negligence pay-out is around £50,000, but pay-outs can be as low as £1,000 and as high as £200,000.
Most people choose to work with a solicitor on a No Win, No Fee contract. With this, you won’t need to pay up-front for any costs relating to your case.
No Win, No Fee claims don’t mean that you won’t be charged anything at all. There may still be some up-front costs, and if your case is successful, you’re likely to be paying a percentage of your final compensation.
There are fees involved in claiming compensation, but if you’re on a No Win, No Fee contract, then you won’t need to pay these straight away. Fees might be covered by legal expenses insurance if you already have this.
If your medical negligence claim is successful, the defendant will need to pay most of your solicitor’s fees. You would be required to pay fees to cover any shortfall. The amount being charged will depend on how long everything has taken. Solicitors typically charge by the hour for all the work they put in, a lot of which is behind the scenes through the months or years before the court case.
Solicitors may charge a percentage of the amount of compensation you’re rewarded. They usually charge up to 25%. If you take this route, you’ll know that the fees won’t become completely unaffordable. Whether you receive just a small amount or a large amount of compensation, you know that your solicitor will take a percentage rather than a specified amount.
In some cases, solicitors will charge an up-front fee at the start, even if they will operate on a No Win, No Fee basis. This fee would cover initial investigations to see if your case is worthwhile, and your solicitor may then refuse to take your case any further. Even though these are just initial fees, they could cost thousands of pounds.
Claims management companies work much the same as solicitors when it comes to fees. Most will operate on a No Win, No Fee basis. Usually, they charge fees of around 20%, though some will charge a much higher percentage.
No Win, No Fee agreements are also known as Conditional Fee agreements. With these, you only pay if your claim is successful. Otherwise, there are no fees.
Solicitors will only take on your case if they believe it’s going to be successful. They’ll take out insurance that covers their fees if you don’t win any compensation, though it’s obviously better for your solicitor if your claim ends in success. Once you’ve been awarded compensation, your solicitor’s fees will need to be paid from your award. The defendant may also be required to pay some fees, so you’ll simply make up the shortfall.
Be aware that if your case settles out of court, your solicitor will still expect their fees to be paid. If this happens, the defendant may not have to make any contribution to these fees. Meanwhile, if your case is unsuccessful, you may need to make a contribution towards the defendant’s legal costs.
Medical negligence compensation isn’t taxable, though you still need to consider what happens after the money is awarded. Compensation may affect any means-tested benefits, meaning you’re entitled to less, so it’s important to put the money in the safest possible place.
It may be best to put your compensation in a Personal Injury Trust. This will stop it from affecting any means-tested benefits.
A Personal Injury Trust allows you to store your money so that it’s not included in your current savings. You can then use the money to make direct payments, so the money is never considered ‘yours’ for the purpose of calculating benefits.
If you’re going to claim compensation, you should have as much evidence as possible to increase your chance of success.
Where possible, keep invoices and receipts relating to your illness or injury. Include travel expenses, prescription costs, and other related expenses. Keep records and notes of your symptoms, including how they affect you day-to-day.
If you’re employed but have taken time off work, you can collect evidence to show this. You might also want to use any medical notes, which you are entitled to ask for. If you make a formal complaint, you should be able to request any medical notes that could support your claim.
Witness statements can be extremely valuable if you can get hold of any. Family and friends may be happy to write down how your injury has been affecting you. You might also find some medical professionals that will write their own witness statements.
Keep copies of all letters, along with the dates that they were sent or received. A paper trail is very important when you’re trying to claim compensation.
During the process of claiming compensation, your solicitor is likely to arrange additional medical assessments. You may be examined by experts, and their reports might become part of your case documentation.
The easiest and most direct way to claim is to contact a specialist solicitor. It's best to choose someone with previous experience in medical negligence cases. A solicitor can manage your whole case, from the first contact through to your award. Another option is a specialist claims management company.
A specialist solicitor will have the expertise and knowledge to take your case forward. They'll represent you in court, having first gathered the necessary evidence and arranged any assessments. They may be able to encourage the defendant to settle the claim out of court but otherwise will keep working on your case until the judge has made their decision.
Claims management companies are an alternative option for compensation claims. They're not regulated to the same standard, though the Financial Conduct Authority (FCA) is making efforts to improve regulation. Representatives of claims management companies don't need to be qualified solicitors, but this does mean that they may not be able to take the case all the way to court.
Often they work in the early stages but still need to get a solicitor involved if the defendant doesn't settle out of court. Most end up acting as a middle-man – they're more affordable at first but could lead to extra costs if your claim isn't easily settled.
Many medical negligence claims don't even end with a court case. Often, defendants accept their liability and come to an agreement out of court.
Even if your case ends up going to court, it's very unlikely you'll attend. In most cases, a judge simply looks over the evidence and doesn't need to see you in person.
For the duration of your court case, negotiations will be ongoing. At any time, an agreement could lead to early settlement. Only in very extreme cases do all negotiations fail, and in those situations, you'll have support through the trial.
In the unlikely event that your compensation claims lead to a trial in court, you may be in the courtroom with the defendant. The defendant will be the person you're claiming against – it may be the surgeon that made an error during surgery, the GP that ignored your symptoms, or the nurse that gave the wrong medication. You'll be asked questions and required to give evidence, as will the defendant in the courtroom.
Many people worry about claiming compensation from the NHS. As a service that's free at the point of delivery and that we're often told is underfunded, the NHS can seem almost beyond reproach. The NHS may have served you well throughout the rest of your life, so you might feel guilty for making your compensation claim.
Going to court, and facing NHS staff, might feel especially daunting. Remember that your compensation claim could help other people even more than it helps you. If your claim highlights a potential problem with staffing or a procedure, it may lead to changes that reduce the risk of the same thing happening in future.
Here at Money Savings Advice, we have partnered with some of the UK’s leading Medical Negligence Claims management companies. They have already helped thousands of people claim compensation for the negligence they have incurred, and they can do the same for you.
Choosing an independent claims management company means they won’t proceed with a claim unless they are sure it is in your best interests. They are also regulated by the FCA, which gives you an additional layer of protection.
If you would like to speak to one of these claim management companies who can help you make a compensation claim, then click on the below and answer the very simple questions.
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