If you suffer an illness or an injury, you trust a healthcare professional to treat you so you can return to your normal activities. Sometimes, however, a visit to the doctor can cause unnecessary suffering, distress and worsening of a condition.
All healthcare providers have a duty of care to take all reasonably foreseeable actions to keep their patients safe and prevent unnecessary harm. Not holding their duty to the required standards may be regarded as medical negligence.
A doctor could act negligently by failing to diagnose a medical condition, prescribing the wrong treatment, not warning you of the risks involved during treatment or making mistakes during surgery. A medical error can worsen your present injury or illness and cause further health problems.
If you or a loved one suffered unnecessarily due to medical malpractice, you might be able to make a medical negligence claim. You can usually ask for compensation within three years of a negligent injury.
Furthermore, if you have a valid claim for medical negligence, your solicitor will offer you a no win no fee agreement. You will not have to worry about any upfront charges and solicitor fees, and you have nothing to lose if your case turns out to be unsuccessful.
For a free consultation with a legal adviser, call 0800 678 1410. They can let you know if you may be eligible to make a medical negligence claim and can answer any questions you may have.
Do I have a medical negligence claim?
The most straightforward way to find out if you have a valid claim is to contact a medical negligence solicitor. They can let you know if you could receive compensation based on the circumstances and implications of your healthcare accident.
Usually, a claim should be possible if:
- You became aware of your injury in the last three years.
- A medical professional breached their duty of care towards you, causing your injury.
You can make a medical negligence claim against any healthcare professionals, including your GP, a dentist, nurses, physicians, physiotherapists, optometrists and any other specialist doctor that treated you negligently.
You could claim both against the NHS and a private healthcare provider if you suffered an injury due to:
- A misdiagnosis or delayed diagnosis
- Surgical negligence
- Prescription and treatment errors
- Anaesthesia complications
- Pregnancy and birth injuries
- Dental negligence
- Negligent cosmetic surgery
- Negligent medical advice and long-term treatment
- Optician negligence causing eye or facial injuries
If your medical negligence solicitor believes you have a valid claim, they will work hard to prove the care you received was below the legal duty of care standard.
In most cases, an expert medical witness will be called upon to establish the causal link between your doctor’s negligence and the damage you suffered as a result.
For a free consultation with a legal adviser, call 0800 678 1410. They can let you know if you have a valid medical negligence claim and can answer any questions you may have.
What is medical negligence?
Medical negligence refers to any harm caused to a patient due to the substandard care of a healthcare professional. In 2018, the Supreme Court of the United Kingdom decided that the duty of care towards patients extended to the information given by staff and doctors.
The medical standard of care is considered the level of care that a reasonably competent and skilled professional in the same medical community would have provided in the circumstances leading to your injury.
If a physician, surgeon, dentist, nurse or any other healthcare provider deviates from the accepted standard of care by providing substandard treatment, then they failed in their duty of care by acting negligently.
Medical negligence does not always result in injury to the patient. To be able to claim for medical negligence, the care you received must have three characteristics:
- It was beneath the standard of care accepted by the profession
- It caused a patient to suffer some kind of injury
- The injury caused the patient personal and financial damages
Doctors and hospitals are expected to provide knowledgeable and skilful medical assistance and always keep in mind the best interest of the patient.
Therefore, healthcare professionals are expected to carry out all necessary investigations and obtain informed consent from the patient before carrying out any invasive investigation, major treatment or surgical operation.
Failure of a doctor or hospital to carry out their duties according to the acceptable standard of care is considered a breach of their duty. It entitles you to make a medical negligence claim if it caused you some form of personal injury or illness.
What are the most common types of medical negligence?
Medical negligence describes a wide range of situations where a healthcare professional provides substandard care to a patient, causing them direct and unnecessary harm.
If a doctor or other hospital personnel breach their duty of care, you can claim medical negligence compensation. This is valid for all NHS and private care providers.
Some of the most common medical negligence claims include:
Accident and Emergency claims
Nobody wants to be in a position to require A&E assistance. A&E paramedics and doctors are expected to be fast and efficient.
Unreasonable ambulance delays or lack of adequate equipment to deal with the emergency are potential grounds for compensation if it leads to a worsening of the patient’s condition.
Common medical errors in the A&E department include failure to diagnose fractures, infections, a blood clot or brain haemorrhage, or correctly assess head and spinal injuries, which might result in permanent nerve damage and other severe consequences.
Amputation and loss of limb claim
Avoidable medical errors can sometimes lead to unnecessary amputations with devastating physical and mental consequences. This could be due to a surgical error, incorrect treatment of diabetes, misdiagnosed or mistreated infections or cancer misdiagnosis.
Cancer misdiagnosis and late diagnosis claims
Sadly, cancer is often diagnosed at an advanced stage when it might be more troublesome to treat. It might be particularly distressing to find out that an early diagnosis would have given a better prognosis and required a less radical treatment.
Not all cases of late diagnosis can be considered medical negligence. Some cancers are particularly aggressive and difficult to treat in any event.
Medical errors that could lead to cancer misdiagnosis include non-referral by the GP, failure of a consultant to identify malignancy or administrative errors in which patients that need surveillance do not get called for follow-up exams.
Cerebral palsy claims
Cerebral palsy defines a group of disorders that affect a person’s motor skills and cognitive abilities. Tragically, it is often caused by preventable medical mistakes during childbirth, such as an injury or failure to diagnose oxygen starvation during labour.
Cerebral palsy compensation claims are complex and strongly defended, as they can often be worth millions of pounds. It might take a long time to value since the child needs to be visited by suitable experts to assess the severity of the condition, their care needs and prognosis.
Dental negligence claims
A visit to the dentist does not always make things better. Occasionally, a patient will suffer a poor outcome due to misdiagnosis, poor dental technique or careless treatment. You could not only need an expensive and painful remedial treatment but suffer irreparable damage like nerve injury.
GP negligence claims
General practitioners are usually the healthcare professional we first consult when having an acute or even chronic illness. They are responsible for providing preventive care and referring patients to a specialist if there is reason to suspect the need for further investigations.
Common medical negligence claims against a GP are due to failure to recognise the symptoms of a severe illness and refer the patient to a specialist, prescribing the wrong medication or with inadequate monitoring or failure to refer the patient back to the hospital for follow-up exams.
Orthopaedic and bone injury claims
Even the misdiagnosis and treatment of a minor fracture can result in lifelong pain, deformity and subsequent financial losses. When a spinal treatment or intervention goes wrong, that can lead to severe consequences, such as paraplegia or quadriplegia.
Hip and knee replacement can also give rise to many serious problems if the prosthetic is wrongly positioned or has the wrong size. These can cause lifelong pain and difficulty, infections and mobility issues that could be valid grounds for medical negligence compensation.
Pregnancy and birth injury claims
Sometimes, complications may arise during pregnancy and childbirth, which can cause lifelong problems to the mother or child if not properly monitored and treated.
Pre-eclampsia, caused by a placenta defect, can result in the death of both the mother and child if not recognised and monitored throughout pregnancy.
Another pregnancy complication is gestational diabetes, which is easy to diagnose and treat but with tragic consequences if the obstetrician negligently fails to detect it.
Injuries during childbirth are not uncommon. Excessive force when using the forceps can cause severe trauma to the child, resulting in broken bones or brain damage.
Surgical negligence claims
Surgery is often distressing and traumatic, even if everything goes well. A failed surgical operation due to negligence might result in the need for further surgery, prolonged recovery or permanent injuries.
Surgeons could cause damage to adjacent tissues and organs or injure blood vessels and cause haemorrhages. Errors in administering anaesthetics can have devastating effects on patients. Negligent plastic surgery with an unacceptable outcome can be very traumatic.
Surgical errors caused by negligence are a common cause of medical negligence claims.
Wrongful death claims
Losing a loved one due to a medical error is a devastating event. Delayed diagnosis, hospital referral or surgery can cost a patient’s life when they have an acute condition like brain haemorrhage, pulmonary embolism or an infection such as meningitis or sepsis.
Surgical negligence may cause irreparable damage to internal organs. Incorrect medication or incorrect dosage of a drug can also be fatal.
How do I make a claim for medical negligence?
You might be entitled to make a medical negligence claim against a healthcare professional if you feel that they:
- Gave you a misdiagnosis, late diagnosis or failed to diagnose your condition, resulting in a worsening of your symptoms
- Made a mistake before, during or after a surgical intervention, causing you unnecessary harm
- Prescribed you the wrong medication or treatment options
- Failed to get your informed consent before carrying out a surgery
- Did not inform you about the risks associated with a particular treatment they prescribed
- Acted in any other way negligently and without considering your well-being
If you decide to claim compensation, the first step you should take is to contact a medical negligence solicitor. If they believe your claim is valid and likely to succeed, they will offer you a no win no fee agreement and begin legal proceedings.
If the solicitor accepts your case, they will guide you through the claiming process, providing help and advice at every step along the way.
After accepting your case, your solicitor will request all of your medical records. This can take up to several months, but it is essential to have all your medical records to confirm that you received negligent treatment which caused you an injury or contributed to the worsening of an existing condition.
A medicolegal expert will assist your solicitor in proving that you received a substandard level of care and release a report stating the harm you suffered and any long-term implications.
After obtaining the expert report, your medical negligence solicitor will consider all the damages you suffered to calculate a suitable compensation amount.
General damages for pain, suffering and loss of amenity are calculated based on relevant guidelines and other compensations awarded in similar situations. Special damages are calculated by summing up all the financial losses and expenses incurred because of your injury.
The claim will then be presented to the defendant in the form of a letter of claim. They will have four months to consider the allegations, investigate the case and confirm whether they accept liability or contest the claim.
Based on the defendant’s letter of response, your solicitor will begin to discuss settlement options or start court proceedings if you cannot settle. This does not necessarily mean there will be a trial. Most claims eventually settle before going in front of a judge.
How do you prove medical negligence?
Evidence is essential in every personal injury claim, and your medical records are the most important piece of information. Your medical negligence solicitor, with the help of a medicolegal expert, will work to show that the healthcare professional that treated you was negligent by proving:
Breach of duty
You must be able to prove that the defendant did not exercise a reasonable standard of skill, knowledge and care when they treated you.
This involves showing that they did or failed to do something that does not comply with the standard of care that would have been offered by other professionals in the same medical field.
Not every mistake a medical professional might make is considered negligence. It will be up to the medical experts to assess liability.
Bodies like the National Institute for Health and Care Excellence (NICE) offer extensive guidelines that give solicitors and doctors objective standards for comparison. Acting contrary to the NICE recommendations will likely be seen as a breach of duty.
For your claim to be successful, you must show that your injury or worsening of a condition was directly caused by negligent treatment. You cannot make a claim for medical negligence if you were aware of the risks, and any pain or suffering would have been inevitable.
You need to have clear evidence of the harm you suffered due to negligent treatment. Your medical records and expert examinations will serve as proof for general damages like pain, suffering and loss of amenity.
Special damages include lost earnings, costs of care, adaptations to your property, travel expenses and any other financial losses you incurred due to medical negligence.
You can support your claim by providing:
- Medical records that your solicitor will get for you
- Relevant photographs that can show an injury when it occurred
- A detailed statement about how you got your injury or how your condition worsened
- Witness statements from family and friends
- Reports from independent medical experts who have specialist knowledge in the field relevant to your treatment and also experience with claiming
Your medical negligence solicitor will help you gather all the evidence you need to support your case and arrange for an independent medical assessment. They will guide you through every step of the claiming process and answer any questions you might have.
Do medical negligence solicitors offer no win no fee?
For any person who might want to pursue a medical negligence claim, the cost of solicitor and legal fees is naturally a significant concern. Before April 2013, Legal Aid was available to fund claims for medical negligence, but now very few cases, like birth injury claims, qualify for Legal Aid.
If you don’t have an insurance policy that might cover the costs of pursuing a claim, you can always count on a no win no fee agreement.
Due to the complexity of medical negligence claims, your solicitor might ask you for a fixed fee to carry out an initial investigation. If your case is strong and has a fair chance of success, you can then enter a conditional fee agreement (no win no fee) and won’t be charged any fee afterwards.
In most cases, your solicitor will take out an After the Event (ATE) insurance policy on your behalf. This makes sure that should your claim be unsuccessful, you won’t have to pay a single penny for legal costs like medical report fees, solicitor or court fees. Even the ATE policy fee is covered.
If you win your claim, the defendant will usually have to cover most of your legal costs. You may have to cover any shortfalls in their contribution, such as:
- The ATE insurance policy. The cost of the ATE insurance premium depends on the strength of your claim and the level of cover required. The more complex and high-risk your case is, the higher the cost of the ATE insurance premium.
- Basic legal costs that can’t be recovered from the defendant
- A success fee to compensate for the risk your solicitor took by accepting your case on a no win no fee basis. The success fee depends on the circumstances of each case and is agreed upon at the beginning. Nonetheless, it cannot exceed 25% of general damages and past financial losses.
The no win no fee agreement is the preferred way of making a medical negligence claim. It usually involves no upfront fees, and there are no hidden charges. Everything that will be deducted from your compensation is discussed with you from the beginning, so there will be no surprises.
How much compensation is a medical negligence claim worth?
To be eligible for a medical negligence claim, you must prove that a healthcare professional gave you substandard treatment, causing a substantial injury.
NHS Resolution, the insurance company that settles all medical claims against NHS providers, facilitated 27,416 medical negligence claims between 2013 and 2018.
The majority of claims, 16,443 or 60% of the total, had a value of under £25,000. However, thousands of them were valued between £25,001 and £1M and 723 were worth more than £1M.
It is hard to estimate the value of a medical negligence claim beforehand, but this will depend on the severity of your injuries, the financial losses you incurred and any long-term consequences, both physical and economical.
In any personal injury claim, you can ask for compensation for:
Special damages for any financial expenses, such as:
- Lost wages, including future losses
- Cost of medication
- Private treatment
- Rehabilitation costs
- Travel expenses
- Adaptations to your home and vehicle
- Medical equipment
- Costs of care
- Any extra costs you incurred because of your injury
General damages awarded for pain, suffering and loss of amenity, including:
- Physical pain and suffering
- Psychological trauma
- Loss of consortium
- Loss of companionship in wrongful death claims
- Decreased quality of life
- Loss of a unique career
- Scarring and disfigurement
- Loss or impairment of physical or mental capacity
The compensation for special damages is awarded by summing up all the financial losses you suffered due to medical negligence, for which you have proof. General damages are more difficult to calculate as they refer to subjective losses.
Solicitors and courts use relevant guidelines such as those published by the Judicial College to calculate compensation for general damages. According to the usual amounts awarded in cases similar to yours, you might get:
- £60,000 to £100,000 for severe injuries to internal organs
- £50,000 to £85,000 for pelvic and hip injuries
- £180,000 to £300,000 for a brain injury
- £61,710 to £122,860 for severe neck injuries
- £1,000 to £200,000 for pain and suffering, depending on the severity
- £225,960 to £264,650 for wrongful leg amputations
- £225,960 to £281,520 for wrongful arm amputations
- £36,060 to £49,270 for an illness caused by dental negligence
- £8,550 to £28,240 for moderately severe scarring
- £5,500 to £17,900 for mild psychiatric damage
- £12,000 to £300,000 for wrongful death
- £50,000 to £300,000 for moderate to less severe spinal cord injuries up to over £1M for very severe cases
According to NHS Resolution, the average compensation for medical negligence in the UK is around £50,000. Nonetheless, a woman who suffered a catastrophic brain injury due to a surgical error, leaving her disabled, was secured £24million by her solicitor, the highest amount awarded in the UK (at the time of writing).
After a thorough assessment of your case and injuries, your solicitor can give you a fair estimate of how much compensation you could expect from your medical negligence claim.
What are the time limits for making a medical negligence claim?
Under the Limitation Act 1980, the time limit for most personal injury claims is three years from the date of injury. In medical negligence claims, the three-year countdown might start on the date of the negligent treatment or the date of knowledge of your injury.
The date of knowledge refers to the moment when the claimant became aware of the following:
- That their injury is significant enough to take legal action
- That it was entirely or at least partially caused by a medical professional
- The defendant’s identity
- Any other relevant facts about the event that caused the injury
Based on the circumstances of the case, a judge will determine the date by which the claimant should have reasonably suspected that something went wrong with their treatment and start investigating. This will be influenced by:
- The timeline and severity of the symptoms
- The claimant’s circumstances
- Whether they asked for a second medical opinion after the initial diagnosis
A judge could rule that the date of knowledge falls beyond the three-year limit for claiming if the victim failed to act on what they consider reasonable suspicion of negligence.
Some medical negligence claims fall outside the three year limitation period:
- If a child under the age of 18 was the victim of medical negligence, the three-year limitation period starts after they turn 18. Before that, a litigation friend (which could be a parent or legal guardian) can claim compensation on their behalf at any point.
- Under the Mental Capacity Act 2005, someone who lacks capacity due to a permanent disability will not be subject to a claim limitation date.
- If a person suffers brain damage due to medical negligence and is not able to conduct legal proceedings, the three-year countdown does not start until their recovery.
- If you suffered medical negligence abroad, the time limitation date to make a claim could vary from country to county. You should contact a medical negligence solicitor as soon as possible after becoming aware of an injury, as you might have as little as six months to start a claim.
- In wrongful death cases, a dependent of the deceased can make a claim within three years from the date of death. If a claimant died while pursuing a claim, their family has another three years from this date to continue claiming.
In some instances, the court may be able to extend the three year limitation period. For example, they might offer additional time if the claimant was unfairly prejudiced. This might be due to delays in obtaining medical records or expert advice, despite their best efforts.
An additional three months were added to the three-year claiming period since the Coronavirus pandemic to adapt to delays in handling the claims.
Regardless of what limitation date might apply to your situation, it is always recommended to seek legal help as soon as you suspect something went wrong with your medical treatment. Medical negligence claims are complex, and it can take a lot of time to gather evidence and build a strong case.
Can I make a medical negligence claim against the NHS?
The NHS services are invaluable, and they usually provide very good care to patients. Occasionally though, their high standards can slip, and things can go wrong. If you suffer an injury or substandard treatment in an NHS facility, you can claim compensation for medical negligence.
Before taking legal action, you might find it helpful to make a complaint and find out more about what happened during your treatment. This will help you make a more informed decision about going ahead with a medical negligence claim.
You can complain about any aspect of the NHS care as long as you received their services or suspect to be affected by the treatment you received in their facilities.
NHS Resolution is an insurance company set up by the government that handles all medical negligence claims made against an NHS medical professional.
In 2020/2021, NHS Resolution settled 15,674 claims, of which 11,704 were without formal court proceedings, 3,914 with court proceedings but without reaching trial and only 56 (0.3%) at trial. In over 55% of all claims, the claimant received compensation for damages.
If you decide to claim compensation from the NHS, your medical negligence solicitor will guide you through the process step by step. You should be eligible to make a claim against the NHS if:
- You suffered negligent treatment or became aware of an injury in the last three years
- A healthcare professional breached their duty of care towards you by delivering substandard care
- Their negligence caused you to suffer avoidable damage
If your case seems solid, your solicitor will offer you a no win no fee agreement, so you can focus on your recovery and the claiming process without having to worry about any financial risks.
Your solicitor will get your medical records and handle all the required paperwork. You will only have to attend a medical appointment with an independent specialist. They will issue a report detailing what type of negligence you might have suffered and any long-term implications.
Can I claim for medical negligence against a private healthcare provider?
Private healthcare providers hold the same duty of care towards patients as NHS professionals. Causing unnecessary and avoidable harm to a patient could be deemed medical negligence and might entitle the victim to claim compensation.
The General Medical Council guidelines state that all medical professionals working in private healthcare must take out liability insurance to cover negligence claims. They are classed as contractors rather than employees, like in the NHS.
You could bring a claim for medical negligence against a private healthcare provider for several reasons, including birth injuries, misdiagnosis, careless treatment, surgical mistakes and delayed diagnosis.
To be eligible for a claim against a private healthcare provider, you must be able to prove:
- The care and treatment they offered were below the accepted medical standard.
- Their substandard care caused an injury or the worsening of a condition. This can be tricky to prove, especially if you were already suffering from an underlying condition.
The claiming process is similar to that against the NHS. Your medical negligence solicitor and a medicolegal expert will review your medical records and determine the type of negligence you suffered.
You will also get a free independent examination with a medical specialist for a comprehensive assessment of your injuries and the long-term consequences of the harm you suffered.
The private healthcare professional will then receive a letter of claim stating your allegations, and they will have to provide a letter of response within four months.
If they admit liability, you can start negotiating the settlement. Otherwise, your solicitor will issue court proceedings to fight your case before a judge.
Will I have to go to court to make a medical negligence claim?
According to NHS Resolution, out of the 15,674 claims they settled in 2020/21, only 25.3% needed formal court proceedings, and just 0.3% of these actually reached trial. Therefore, there are few chances you will have to go to court to fight your case.
Whether your claim is against the NHS or a private healthcare provider, if the defendant denies liability or you cannot settle, your solicitor will have to issue court proceedings. They will file a Claim Form detailing the basis of your claim with the court, which will serve it to the defendant on your behalf.
The judge will subsequently provide a trial date, which might be set after 6 to 12 months. After starting court proceedings, both parties will make full disclosure of their evidence and all relevant documents.
This allows the defendant to make an informed decision as to whether they want to settle or go to court. Usually, it is more beneficial both for the claimant and the defendant to settle before reaching trial.
If you cannot settle before the fixed court date, you will have to attend the trial. Medical negligence claims are made before a judge, with no jury.
Usually, you will only have to give a statement, and it will be the medical experts to present the evidence. If you win the claim, the judge will decide what compensation amount will be awarded to you and how soon you must receive it.
If you lose, there is little chance of appeal, and your solicitor will determine if it’s worthwhile. Nonetheless, if you took a no win no fee agreement, you will incur no financial losses.
How long does it take to settle a medical negligence claim?
Due to their complex nature, medical negligence claims can take a long time to settle. The time required to reach a settlement is highly influenced by the nature of the negligence suffered and the value of the compensation amount.
Claims under £25,000 facilitated by NHS Resolution between 2013 and 2018 settled on average within two years, while those worth more than £1M took around five years to conclude.
Most medical negligence claims settle before reaching trial, and they will take a lot less time from start to end. If your case needs to go to court, it might take up to a year only to get a trial date. This is usually the case for high-value, complex claims.
From the time you contact a medical negligence solicitor, it can take a minimum of 3 to 4 months for them to gather the medical records attesting to your injuries. If you need an expert report, this can add to the time spent gathering evidence.
After you send a letter of claim to the defendant, they have 14 days to acknowledge your claim and up to 4 months to investigate your case and send a response. If they accept liability, you can start negotiating a settlement. This can take weeks to several months and sometimes even much longer.
If the defendant denies responsibility for your damages, you will have to go to court. The court hearing takes between 3-5 days, but the trial date is usually fixed between 6 to 12 months after starting court proceedings.
After assessing the full extent of your injuries, your solicitor might be able to give you an estimate of how long it will take to settle your claim.
Can I make a claim for medical negligence on behalf of someone else?
The Court of Protection Rules 2007 states that any person may act as a litigation friend on behalf of a child or a protected party if they:
- Can fairly and competently conduct legal proceedings on their behalf
- Has no conflict of interest with the person in question
Acting as a litigation friend on behalf of someone else is a long-time commitment that brings many responsibilities. You will have to:
- Make sure the injured person attends their medical appointments
Approve and sign legal documents
Regularly consult with the medical negligence solicitor
Make decisions about the claim and give directions to the solicitor
Pay any legal costs incurred during the claiming process
Carefully consider settlement offers
If you are ready to assume the responsibilities of a litigation friend, you could represent:
- A child under 18 who suffered medical negligence
The litigation friend is usually one of the parents or a guardian, but other individuals can also fill the role as long as they have the child’s best interest in mind.
Usually, the compensation awarded to the child will be paid to the court and put in an investment account until the child turns 18.
- A protected party
As defined in the Mental Capacity Act 2005, a protected party is someone who lacks the mental capacity to conduct legal proceedings. This can be due to an impairment or disturbance in the functioning of the mind or brain.
You could represent a victim who suffers from dementia, Alzheimer’s disease, autism, stroke, bipolar disorder, depression or any other condition affecting their intellectual ability.
If the victim regains mental capacity, your role as a litigation friend will come to an end.
- Someone with a language barrier
You can conduct legal proceedings on behalf of someone whose first language is not English after the medical negligence solicitor gets their formal consent.
- A deceased person
You can make a claim on behalf of a loved one who lost their life because of medical malpractice.
For a free consultation with a legal adviser, call 0800 678 1410 or request a call back. They can let you know how you can represent a loved one in a medical negligence claim and answer any questions you might have.