How Can I Fund My Medical Negligence Claim?6th Jun 2019
When you’ve suffered negligent treatment at the hands of a medical practitioner who you trusted, it is well within your rights to claim the compensation that you deserve.
However, the prospect of going to court and funding a potentially expensive claim can be very daunting indeed.
But don’t despair – it’s very unlikely you’ll have to pay for either your or the defendant’s costs. There are both protections in place and various means of funding available.
The costs involved in pursuing a claim can vary considerably, depending on a range of factors including:
- how long the case takes to conclude
- whether the claim is defended by the doctor and/or hospital
- the value of the claim
- the number and specialisms of the medical experts needed
- the length of the trial (in the unlikely event it goes to trial).
Your total costs up to and including the trial could be as much as £100,000-£200,000. If the case is contested, the defendant’s costs are likely to be around 25% less. Fortunately, it is very rare for cases to proceed to trial as they are usually settled out of court, and so a fair estimate of costs to conclusion of the claim might be around £40,000.
Protection for Claimants
In April 2013 a new rule called Qualified One-way Cost Shifting (QOCS) was introduced to protect claimants against having to pay the defendant’s costs should the claim fail.
QOCS applies to all medical negligence cases and it means that if your claim succeeds, the defendant will be ordered to pay your legal costs.
However, if your claim fails then (subject to a few exceptions) the defendant will not be able to recover their costs from you. The exceptions include when:
- you refuse a Part 36 settlement offer by your opponent, but you later agree, or are awarded less by the judge at trial
- an interim costs order is made against you by the court
- your claim is struck out in certain circumstances.
No Win, No Fee Agreements
The most common way of funding a medical negligence claim is via a ‘Conditional Fee Agreement’ (CFA), also known as a ‘no win, no fee’ agreement.
These agreements mean that you would not be required to pay any costs if the claim fails. If the claim is successful, you would pay a success fee to your solicitor, which is usually capped at a maximum of 25% of the damages awarded for injuries and past losses.
An After The Event (ATE) insurance policy is almost always taken out alongside a CFA. This protects you from having to pay your opponent’s costs and your any disbursements incurred as a result of your claim. However, this insurance is only available if you are sufficiently likely to win your claim. If you win your medical negligence claim, the cost of the premium for the cost of medical reports is recoverable from the defendant, however the premium for Part 36 risk is paid from your damages. The premium is usually written off if the claim fails.
Before The Event (BTE) Insurance
You may have an existing insurance policy (referred to as Before The Event or BTE insurance), perhaps linked to your house or car insurance, which can help you to fund your claim.
An advantage of having this insurance is that the you may not have to pay a success fee to your solicitor.
However, your insurer may insist that you use its panel of solicitors, who may not be located conveniently and may not be of the same high quality as a solicitor you would choose yourself. Do your research before you commit to your insurer’s solicitors; a no win, no fee agreement with your chosen solicitor could be a better option.
Legal Aid
For clinical negligence claims, Legal Aid is now only available for claims on behalf of children with a severe disability due to a neurological injury sustained during the pregnancy, birth or shortly afterwards.
Private Funding
The final option would be to fund your claim yourself. This may be a last resort if you have not been offered a no win, no fee agreement because the likelihood of your claim being successful is very low.
It’s wise to take the advice of your solicitor if they have suggested that you are not likely to win your claim, as you would be at risk of losing substantial legal costs if the claim failed. Our specialist team has many years of experience handling complex medical negligence cases and is therefore best placed to advise you on the prospects of your claim.
Learn More About Your Options
Have you suffered from medical negligence? Book a free initial chat with one of our medical negligence specialists.
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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.
