In order for a medical negligence claim to be successful, there are four main requirments which must be met. The first of these is the easiest to prove: that the medical professional in question had a duty of care towards the injured patient. This is automatically the case if the victim of clinical negligence was being treated by the accused medical personnel.

The second and third requirements, liability and causation, fall under something known as the Bolam Test. Liability is established by showing that the actions of the medical professional accused of negligence were something that no other expert in the field would have undertaken. Causation is used to show that the injuries inflicted would not have happened if different action had been taken. This is determined if there is found to be a greater than 50% chance that the action caused the personal injuries.

The fourth and final element that needs to be shown is that the losses and damages caused were not too “remote”. This means that the negligence must have had a direct effect on the victim for compensation to be paid. For example, if a doctor makes a mistake and a patient requires a limb amputation directly due to this mistake, then compensation should cover these injuries. On the other hand, if a doctor misdiagnoses a patient with terminal cancer, the doctor cannot be held accountable if the patient spends all their money on frivolous pursuits; however, they will still be liable for compensation for the misdiagnosis if it caused pain and suffering, or loss of earnings if the victim had to quit their job.

Time limitations on medical negligence claims

British law places a three-year time limit from the date of the accident or injury to initiate legal proceedings. However, there are situations when the time limit begins at a different date, and this commonly happens in cases of medical negligence.

The first exception is when it is not immediately apparent that treatment was negligent, or that an injury was inflicted. As an example, a patient who attends hospital for an operation and has a piece of surgical equipment left in their body has three years to make a claim from the date the mistake is discovered, rather than from the date of the surgery.

The second exception is if the victim is under the age of 18. When this is the case, the three year time limit begins from the date of the person’s 18th birthday.

Occasionally, a judge may decide that the time limit should not apply, but this does not happen very often.

Claiming as a litigation friend

In incidents of medical negligence involving children or people with diminished mental capacity, it is obviously impossible for them to launch legal proceedings on their own behalf. Injured children can wait until they are 18, but it is also possible for someone – usually a parent or guardian – to be appointed as what is known as a “litigation friend”. A litigation friend can make a compensation claim on behalf of the injured party, and will act in their best interests.

The NHS Litigation Authority

The NHS Litigation Authority (NHSLA) handles all claims of medical negligence made against the NHS. Whether you make a claim against an individual NHS doctor or medical facility, the NHSLA will be involved in trying to settle the claim. In fact, only around 2% of claims made against the NHS actually reach court.

The authority has reported a steady increase in the number of clinical negligence claims over the past six years. In 2007/08 there were 5,470 claims of medical negligence made against the NHS, but the number had jumped to 10,129 by 2012/13. The chart below shows the number of negligence claims made over the past six years.

Length of time to settle a claim

In most claims made against the NHS, the NHS Litigation Authority aims to reach a settlement as swiftly as possible. The vast majority of cases don’t reach court – if liability is obvious, and injuries were caused by the negligence, the NHSLA will attempt to make a reasonable offer of compensation within a year.

In more complex medical negligence cases it can sometimes be a matter of years before compensation is awarded. This may be because the injuries sustained are so severe that it takes years to determine the full impact they have on the claimant’s life. You should not, however, let this deter you from seeking justice. If you’ve been badly injured, you deserve compensation, and the fact that taking on a hospital, clinic or even the NHS can seem daunting should not be allowed to put you off. Remember that an expert lawyer will be by your side every step of the way and will do their utmost to ensure that you receive the compensation that will, even if only in a small way, help you to put your life back together.

For claims against private practices, the speed of settlement can vary as different clinics and facilities will have different insurance companies, with contrasting methods of dealing with claims. However, whether claiming against the NHS or a private organisation, No Win No Fee‘s medical negligence solicitors have the expertise to help you win the compensation you are due.

Starting a claim for clinical negligence

If you would like more information on the process of making a medical negligence claim, or if you want to proceed with a claim right away, then get in touch with a trained legal adviser by calling 0800 234 6438, or submitting your details online. Provide as much information as you can about matters such as what medical problems you were suffering, when and where your treatment started, its chronological progress, the names of any practitioners involved and the exact details of what you feel went wrong (it may help to write it all down before you call). If you’ve got a viable claim, the legal adviser will let you know, and will do their best to ensure your claim for compensation is successful.