Clinical Negligence Frequently Asked Questions

Can I get compensation for unsatisfactory medical treatment?

You can if we can prove that:

1 the treatment you received fell below the standard of a reasonably competent medical practitioner of the kind that treated you; and
2 as a result of that negligent treatment, you were caused injury, loss and damage.

Whilst we can advise you whether you have a case that is worth investigating further, in most cases we need to instruct independent medical experts to answer these questions. Not all medical accidents will be the result of negligence.

How does a clinical negligence claim work?

Your medical records first need to be reviewed by independent medical experts in the relevant field of medicine to confirm whether you have a case.  As we specialise in clinical negligence cases we instruct different types of experts all the time and know from experience the best experts to use. 

If you have a case, the next step is to write to the appropriate NHS Trust or Medical Defence Union to notify them of your claim.  If they accept liability for your injury, we then simply value your claim and negotiate settlement.  If they deny liability for your injury, the only way of taking your claim further is to go to court. 

How much is my claim worth?

If we can establish liability, then you can recover two types of compensation:

1 Pain, suffering and loss of amenity. 
We need to get a medical report telling us about the extent of your injury to place a value on this.  The more severe and long-lasting the effects of your injury, the more compensation you will receive.

2 Your "out of pocket" expenses
This means the money you lose or the expenses you have to pay as a result of your injury, whether in the past or in the future.  "Loss of earnings" falls under this category.  If you have to rely on the care of other people, there will be a value to this, even if you do not pay for that care. 

Can I get "Legal Aid" to pay for my claim?

Legal Aid is now called Public Funding.  It is available for clinical negligence claims.  To get public funding you need to pass two tests:

1 The "Means" Test

The joint savings and income of you and your partner must be below a certain level.  Broadly, if you or your partner gets income support or income-based job seekers allowance, you automatically pass the means test.  If you do not get either of these benefits, and your savings are over £8,000 and/or if your gross monthly income is over £2,000, then you do not pass the means test.  If your income and savings are under these levels, we calculate your "disposable" income to confirm whether you pass the means test.

2 The "Cost/Benefit" Test

We must be able to justify using public funds to pursue your case.  This is done by weighing the likely cost of the case on the one hand against the potential benefit to be derived by you, and the prospects of success on the other.  To pass this test therefore, the amount of compensation you could get from your case must be more than the cost of pursuing it.  Your case must also have reasonable prospects of success.     

What if I don’t qualify for Legal Aid?

Alternative ways of funding your claim include:

1 Legal expenses insurance

If you have home contents insurance, legal expenses insurance may well form part of the policy.  If so, the policy could pay for the cost of bringing your clinical negligence claim.  We would need to see your policy booklet and schedule of insurance to confirm this.

2 Trade Union Funding

If you are a member of a trade union, it would be worthwhile to check the terms of your membership.  Some trade unions fund clinical negligence claims for their members and members’ families.

3 "No Win No Fee" Agreement

If we agree to act for you on this basis, we do not charge you a fee if your case fails.  However, you still have to pay for the fees we pay other people, such as medical experts.  You also have to take out an insurance policy to protect you against the possibility of losing the case and becoming liable for the other side’s legal costs.  If your case is successful, we recover the majority, if not all of our costs, from the other side.    

How long do I have to make a claim?

Proceedings must be issued in clinical negligence cases within three years of the negligent treatment, or within three years of the date you first became aware that you suffered significant injury as a result of that treatment.  After the later of these two periods expires, your case becomes statute-barred.  It is therefore very important that you seek legal advice as soon as you consider you may have a clinical negligence claim.