What is involved in pursuing a claim
This information is intended to provide a brief overview of what is involved in pursuing a clinical negligence claim.
Compensation (Money Damages)
The sole purpose of compensation (Money Damages) is to put you back in the position you would have been in had it not been for any negligence identified (as far as money can do this).
There are two types of damages:
General Damages – designed to compensate for pain, suffering and loss of amenity.
Special Damages – out of pocket expenses (e.g. loss of earnings (past and future), care, etc).
In order to succeed in a claim for clinical negligence compensation it is necessary to prove, on the balance of probabilities, that the medical care and treatment received by a patient fell below a reasonable standard and that the substandard treatment caused injury and loss.
In order to be successful in bringing a claim it must be proven that:-
There has been a breach of duty;
That you have suffered an injury/loss;
That the injury/loss was caused as a direct result of the breach of duty.
In order to prove the above we require an appropriately qualified independent medical expert of the same medical discipline as the Defendant to say whether the treatment provided by the Defendant was inadequate and whether, as a direct result of that inadequate treatment, you have suffered injury.
It must always be remembered when considering a potential clinical negligence action that it does not follow that there has been negligence just because someone has not achieved full recovery or where further treatment has been undertaken that was not initially envisaged or recommended. Even the best care can result in a poor outcome for the patient due to the nature of the initial injury or pre-existing features.
The usual procedure is to obtain the client’s medical records from all treating healthcare providers including the GP. Thereafter, these are arranged in their correct chronological order and indexed and examined.
Following examination of the records, provided it is deemed appropriate to do so the next step is usually to obtain a preliminary liability report where the medical records will be examined by an appropriate independent medical expert who will consider whether the care and treatment received was negligent or not. Sometimes it is necessary to obtain a report from more than one expert.
The report from the expert will enable us to determine whether or not a claim for clinical negligence compensation is likely to be successful. It is at this stage that we will have to reassess the likely prospects of success and advise accordingly.
Provided we receive supportive medical evidence from the expert in relation to bringing a claim against the Defendant we will be able to proceed to the next stage, which is usually to submit details of the claim to the Defendant. At this stage we may also make arrangements for any additional reports to be obtained, which are deemed to be necessary in the pursuit of the claim.
A Letter of Claim will be sent to the Defendant who will then have 4 months in which to investigate the case and either admit or deny fault. If fault is admitted then the claim will be valued and thereafter it can usually be settled by negotiation between the parties. If fault is denied then it may be necessary to go to Court. Further advice on going to Court will follow at that stage, if applicable. The majority of clinical negligence claims settle without the need to go to Court. Of the cases that do go to Court only approximately 1% goes as far as a Trial
At each stage of the case the likely prospects of success will have to be reassessed and if at any time the prospects fall below 51% we will let you know. If this happens we may not be able to proceed any further with the case.
Generally, it takes in the region of 18 months to investigate the claim to the point where we know whether fault is admitted or denied. Clinical negligence claims can take several years to come to a final conclusion and it is important that clients are aware of this from the outset.
As a rule, you must investigate and file a claim at Court within three years of the date of knowledge of the substandard treatment. A failure to do so can result in the claim being statute barred by the Limitation Act 1980. There are some exceptions to this rule; particularly where the claim concerns a child or a deceased person. In these cases the three year time limit does not begin to run until the child reaches the age of eighteen or in the case of a deceased person; provided the date of death occurs within the original three year time frame then the time restarts from the date of death.
If you, a family member or friend believe that you have been subjected to negligent medical treatment our clinical negligence team will be happy to discuss the circumstances of the case with you, without any obligation. Please contact us today.