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What Can I Do Before Claiming Medical Negligence Compensation?13th Sep 2019

by David Simpson on 13th Sep 2019

Contact David Simpson

Complaining To The NHS And The Medical Regulators

There are various actions you can take before claiming for medical negligence. 

Before taking legal action, you may choose to complain directly to the healthcare provider, perhaps through the NHS Complaints Procedure, PALS (Patient and Liaison Service), the Parliamentary and Health Service Ombudsman or the General Medical Council (GMC).

But this is not mandatory. You don’t have to complain to them first. You may wish to go straight to a medical negligence solicitor and claim compensation.

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Will A Medical Regulator Award Me Compensation?

If you have been injured as a result of a medical error, you may be losing earnings and need care and treatment. All this costs money – especially if you have lost faith in the NHS and opt for private treatment. 

The medical regulators can help you by:

  • getting an explanation of what went wrong
  • securing an apology from the clinicians whose negligence injured you
  • making recommendations to the trust to help stop the mistake from happening again.

But they are unlikely to award compensation. So you will need to claim damages separately. 

Time Limits For Claims

There is a strict time limit for claims. You must issue court proceedings within three years of:

  • the negligent event or
  • your later ‘date of knowledge’ (because sometimes the full extent of injuries and indications of negligence become apparent only later).

For a child the three-year time limit runs from age 18.

If you are claiming on behalf of a patient who has died, the three-run time limit runs from the date of death.

There is no time limit if the patient lacks mental capacity. Seek expert legal advice on this because it is a technical area.

NHS Trusts’ Duty To Be Honest

All NHS trusts have signed up to a duty of candour. They must be honest with patients when things go wrong.

That is the theory but experience has shown us that the NHS remains complex, secretive and not always willing to admit liability – even when the medical evidence against it is overwhelming. 

Sometimes its trusts still try to defend the indefensible.

However, most clinical negligence claims are settled out of court. That is better for all concerned: you get your damages payout earlier and the NHS spends less money on court costs.

Pre-action Protocol

The pre-action protocol is a mechanism that actively encourages the parties to settle claims without court proceedings.

This protocol is not mandatory. It is a guide that helps the parties to provide each other with information and documents by adopting a ‘cards on the table’ approach.

But claimants and defendants who do not follow the protocol may be penalised in respect of costs at the end of the case.

Stage 1, Obtaining Your Medical Records

You obtain your medical records by providing the clinicians with a signed form of authority. We can help you with this.

Stage 2, Submitting A Formal Letter Of Claim (LOC)

Your solicitor would then submit a formal Letter of Claim (LOC). This should be based on expert medical evidence.

It will set out the facts and the allegations of negligence. The LOC will outline the injuries you have sustained and the losses you have suffered as a result. 

Stage 3, Letter Of Response (LOR)

The defendant must acknowledge your LOC within 14 days followed by a Letter of Response (LOR) within four months.

This will set out any aspects that they are admitting or disputing. They must provide a detailed explanation. 

Extensions of time are common because these cases are complex – they require a lot of evidence from medical experts on both sides. 

The LOR may admit errors and apologise for them. It may offer a settlement. Or it could ask for more information to help the defendant to assess the extent of your injuries and related losses.

What If We Can’t Reach A Settlement? 

If the claim can’t be settled then you and the defendant are encouraged to consider Alternative Dispute Resolution (ADR). This may take the form of mediation, arbitration or a round table discussion.

In my experience, ADR rarely occurs before the issue of court proceedings – but it is very common before trial.

Furthermore, some courts include a Pre-Trial Settlement Hearing (PTSH) as one of the Case Management Directions. This requires you and the defendant to attend court to actively consider a settlement. 

If you fail to engage in ADR then the court may penalise you when it rules on costs at the end of the case.

Going to court should always be a last resort. But it is inevitable when:

  • the defendant disputes liability
  • the value of the claim cannot be agreed
  • the limitation period is due to expire.

Court proceedings may also be necessary where children or other ‘protected parties’ are involved.

Get Expert Legal Advice

Find out more about the actions you should take before claiming.

Contact Coles Miller Partner David Simpson, head of medical negligence team. He is based at our Poole office, 01202 335695. 

This document is not intended to constitute and should not be used as a substitute for legal advice on any specific matter. No liability for the accuracy of the content of this document, or the consequences of relying on it, is assumed by the author. If you seek further information, please contact Managing Partner Neil Andrews at Coles Miller Solicitors LLP.