Claiming compensation for medical negligence

Your solicitor should be able to tell you at your first meeting about the time limits for starting a claim. This is 3 years from the alleged injury or date of knowledge of the injury.

For a child, the 3 years does not start until age 18, so you may have up to 21 years if the injury happened at birth.

If the injured person has a significant intellectual impairment, whether or not from the injury, the limit of 3 years will not apply. So it's worth enquiring, even if the person is over 21.

It's best to start an investigation as early as possible, while things are likely to be clearer in your mind.

Making a claim can be a long process. It depends on many things, such as:

• the availability of experts
• the complexity of the claim
• space in the court timetable

Unknown factors such as the final medical prognosis can also delay a settlement.

Once liability is admitted, it should be possible to agree interim payments to fund support such as care.

If you are making a claim on behalf of a child with a brain injury at birth or up to 8 weeks old, it is possible they will be eligible for Legal Aid Agency funding.

There must be a reasonable prospect of success. They will ask you if there are alternative ways to fund the claim.

The child is the claimant, so your finances as parents are not assessed.

Check if you can get Legal Aid (GOV.UK)

Your solicitor can explain the options for funding the initial investigation into any potential claim.

Your solicitor can discuss the best funding option for you, whether this is:

• Legal Aid
• Before the Event Legal Expenses Insurance
• or a Conditional Fee Agreement (no win, no fee)

Make sure:

• you know how the firm will charge your fees
• you know the likely costs of investigating a claim and taking a case to trial

Many firms will offer a Conditional Fee Agreement (CFA). This is sometimes called ‘no win, no fee’. This should ensure there is no financial risk to you if your claim is unsuccessful.

If you stopped the claim before it is complete, you would be liable to pay your solicitor’s basic costs.

In most cases, firms will not apply for funding until they have reviewed the medical records and decided the strength of the claim. Most of the time, they do not charge for that screening, but it is important to ask.

There are 2 stages to funding:

1. The initial costs of getting medical records, obtaining expert reports and gaining a barrister’s opinion if necessary.
2. The costs of the various stages leading up to and including a trial if the barrister supports the claim to proceed to court.

If you have unsupportive evidence, the funder is unlikely to support the next stage.

You should receive a client care letter. This will set out the firm’s fees and procedures.

If you feel unsure about how your case is funded or how much you might have to pay, ask your solicitor.

Your solicitor must update you regularly on costs and progress.

The solicitor will choose independent medical experts to prepare their reports and they will have access to your:

• medical notes, records and radiology
• a witness statement prepared by your solicitor

The experts will either support the claim or say that a claim is not feasible.

Once you have agreed the source of funding, your solicitor will ask for copies of all relevant medical notes and records from the hospital and your GP.

Your solicitor will ensure the records are complete and put them in order. They will ask independent experts to prepare reports.

You can also ask for a copy of your records.

This will look at 3 issues:

Breach of duty

Whether the standard of medical care was below the expected standards and medical knowledge at the time of the alleged incident.

Causation

The link between the breach of duty and the injury. Did the medical staff’s failures in care contribute substantially to the injury?

Quantum

The amount of compensation based on meeting the needs of the injured person.

If the experts report that the medical treatment was to an acceptable standard, there is unlikely to be a claim unless there are additional questions raised by the expert or information they need. The expert is likely to raise them in the report.

If they report that the medical treatment was below standard, this is known as a 'breach of duty'. If the breach of duty caused the injury, your solicitor will draft the Letter of Claim.

Your solicitor should explain the reports to you in a meeting, possibly with a barrister and the experts if the case is complex. They will let you know whether they think you have a case and answer any of your questions.

In exceptional circumstances, you may ask your solicitor to get a second opinion from a different expert if the first is unsupportive. But you will probably have to pay for another report.

You also have the right to a second opinion from another firm of solicitors.

To bring a legal claim in their own name, a person must have mental capacity.

If they lack that capacity or are a child (under 18 years old), another person can bring a claim on their behalf. This person is known as a 'litigation friend'. A child will need a litigation friend to bring a claim on their behalf. This will usually be a parent.

The litigation friend will choose the solicitor, acting in the injured person’s best interests.

It is the injured person’s financial means that will determine whether they qualify for Legal Aid.

If not eligible, the litigation friend will be responsible for applying for alternative funding such as a Conditional Fee Agreement.

Finding free or affordable legal help (Citizens Advice)

A split trial will consider who is liable. It will consider compensation later, because:

• It is difficult to decide the total amount of compensation if a person’s needs may change.
• Until liability has been established, it is a waste of legal costs to consider the level of compensation.
• If a split trial on liability is successful, you can receive an interim payment while the full value of the claim is investigated.

An advantage of a split trial is that it gives certainty.

If liability is proven, the next stage is for your solicitor to investigate quantum. Quantum means the financial losses because of what has happened.  

General damages

This is the actual injury. It is sometimes referred to as Pain, Suffering and Loss of Amenity. There will be a lump sum payment for the actual injury.

Special damages

These include any quantifiable losses, such as:

• loss of past and lifetime earnings
• care and expenses incurred because of negligence

Experts will quantify reasonable past and future expenses, such as:

• care
• equipment
• transport
• therapy
• accommodation and adaptations

Costs

Your solicitor will also apply for the costs of the action from the defendant.

If you have a Conditional Fee Agreement (no win, no fee), you may need to pay a financial contribution to your solicitor’s costs from your damages. Your solicitor will advise you of the likely amount at the outset and should keep you updated regularly. This is known as a success fee, unrecoverable costs and usually some of the Insurance premium.

Future expenses are calculated following advice from a range of experts such as:

• occupational therapists
• medical experts
• physiotherapists
• architects
• accountants
• employment and rehabilitation consultants

The amount awarded should reflect:

• the additional cost of accommodation adapted to meet the person's needs
• the cost of providing adequate care and specialist equipment
• loss of past and future earnings
• transport and mobility aids
• the extra costs of social and leisure activities
• other factors such as the cost of continuing education, occupational therapy, physiotherapy and speech and language therapy
• costs involved with administering the award in the Court of Protection

An award of compensation can be split into:

• a lump sum designed to meet past expenses and immediate future expenses
• a guaranteed inflation-linked, tax-free income (often called a Periodical Payment Order or PPO) to meet future predicted costs, such as care and case management

The Court will hold the money awarded in compensation for a child until they are 18.

After that, it can pay this into the person’s control, often with the support of a case manager.

If the individual is not capable of making their own decisions, a deputy can oversee their affairs.

Become a deputy

This is to protect a vulnerable person from financial abuse. Parents usually work with a professional deputy in managing the award and making decisions.

For larger expenditure, such as buying a house, the Court of Protection will need to make an order to allow this. The Court also has to approve annual accounts.

Lump sum payments and benefits