Do I Have a Clinical Negligence Claim?

How do I know if I have a Medical Negligence Claim?

It’s crucial to understand that for a medical negligence claim to proceed, three key elements must be established:

• The healthcare provider owed a duty of care
• Sub-standard care: This means that the care you received fell below the standard expected of a reasonably competent practitioner.
• Harm caused by the failure to provide proper care: Your health outcome must have been adversely affected by the substandard care.

Here are some reasons why a medical negligence claim might not be feasible:

• If no harm resulted from the breach of duty of care, there may not be grounds for a claim. A breach of duty alone isn’t sufficient for you to proceed with a claim. Claims can only be pursued if you suffered actual harm, and not for what could potentially have happened.
• If you undergo a medical procedure the potential risks should be explained to you beforehand. If the harm you complain about was a known risk of the procedure, rather than a result of substandard care, your claim might not be viable.
• The potential compensation versus the cost of pursuing the claim is something you must give important consideration. If the costs outweigh the potential compensation significantly, it might not be a good idea to proceed. This is known as the “proportionality” test.

Time Limits for making a Medical Negligence Claim

If you intend to pursue a medical negligence claim, you must start your claim within three years of the medical incident or when you realised you had an injury due to medical treatment or care failure. However, this three-year limit doesn’t apply to children; they have until their 18th birthday for the period to start, or until they turn 21, to initiate a claim. There are different rules for individuals who lack capacity as defined by Mental Health Act 1983. It is always better, if in doubt, to seek specialist advice.

The Court has discretion to extend limitation but only in exceptional circumstances and where there is very good reason for having missed the deadline.

Can I make a claim on behalf of someone else?

If you’re over 18 and have mental capacity, you must initiate the claim yourself. However, you can authorise a trusted friend or relative to discuss your case with and give instructions to your solicitor on your behalf.

If you lack mental capacity, a litigation friend can be appointed to represent you, or a child under 18, in legal proceedings. This can be arranged through a solicitor, usually initiated by a relative or close friend. For instance, a parent can act as a litigation friend for their child in a clinical negligence case. Alternatively, the court can appoint a litigation friend.

Understanding Complaints vs. Claims

Complaints and claims differ significantly. While complaints focus on service dissatisfaction, claims involve proving substandard care led to harm, usually requiring legal assistance.  A complaint only offers details of the matters complained of and possibly may result in an apology, whereas a successful claim is likely to result in compensation. A complaint can complement a claim, providing valuable information.

So for example:  If you think your GP provided substandard care, we would arrange for an independent GP to review your medical records. They’ll assess if the care fell below standard and caused harm. Successful cases may lead to compensation.

Do I have to make a complaint before I can pursue a medical negligence claim?

Making a complaint can support a claim by providing crucial information, but it’s not an essential part of the claims process. Whilst you don’t need to complain before exploring a claim, it can sometimes be  useful when it comes to making your claim. Our clinical negligence team can discuss your concerns and assess claim viability, even if you haven’t made a complaint.

Your Right to Complain

The NHS Constitution outlines your rights as a patient, including the ability to make complaints about the quality of care you’ve received. You should address your complaints to the organisation or doctor concerned with a response expected within a set timeframe. If you are unsatisfied, you can escalate your complaint to the Parliamentary and Health Service Ombudsman (PHSO).

Private Medical Treatment

If the treatment you’d like to complain about was carried out privately, your complaint will follow different procedures as they don’t fall under the NHS Constitution. You must address complaints directly to the provider.

Speak with our Solicitors in Colchester or Clacton

We know that making a claim can be a difficult decision on top of an already difficult time, so we have made it as easy as possible for you to get in touch.

• A free initial telephone evaluation of your case
• Visits to your home or hospital bed for clients who find it difficult to come to us
• A named member of the TSP Clinical Negligence team who will be responsible for your claim and keep you up to date as your case progresses.
• Car parking and easy access to an interview room for disabled clients