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Medical Negligence -- Should I Complain Before Contacting Solicitors?7th Mar 2019

by David Simpson on 7th Mar 2019

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Advantages Of Complaining First

You don’t need to make a formal complaint about a doctor or hospital before instructing a medical negligence solicitor.

But pursuing a complaint first is often beneficial because – in doing so – you will have prepared a summary of your compensation claim.

And if the opponent has responded then we as solicitors will know what aspects of the claim they are challenging. Also, we may find that some aspects that the opponent admits (and so don’t need to be proved). 

You can complain:

  • through the Patient Advice and Liaison Service (PALS) system operated by hospital trusts
  • to the Parliamentary Ombudsman
  • to the General Medical Council (GMC) but this is for particularly serious matters where possibly a clinician should no longer be practising. 

Disadvantages of Complaining First 

There are possible disadvantages in complaining first before contacting a solicitor.

You might say something in your complaint which you later contradict. Or you might make concessions but this is unlikely (unless due to an error or misunderstanding). 

The main disadvantage is that of time. Personal injury claims have a time limit and you may lose part of that time if you pursue a complaint first.

You could lose your right to claim compensation via the courts if you fail to issue proceedings within three years of the negligence.

That three-year time limit runs from when you first became aware of significant injury due to negligent treatment. Different rules apply where the injured person is:

  • a child – the time runs from age 18
  • lacking mental capacity – there is no time limit
  • deceased – the time runs from the date of death (assuming the death occurred within the time limit).
  • Ultimately, there is some advantage in instructing a solicitor as soon as possible.

Find out more here about No Win No Fee medical negligence claims

Can I Complain To PALS And Instruct A Solicitor At The Same Time? 

There is nothing to prevent you from pursuing a complaint alongside instructing a solicitor.

But in my experience, PALS will stop dealing with a complaint once they learn that a solicitor has been instructed. PALS will be alerted to this fact when we apply for your medical records. 

It is difficult to categorise which claims are better suited to the complaints process than a medical negligence claim.

But the complaints process is more geared towards providing explanations and offering an apology (where appropriate) – whereas the medical negligence claims process is aimed at securing admissions and monetary compensation.

Claims that I would consider more appropriate for the complaints process might involve:

  • general lack of care where the outcome has caused upset but falls short of any significant injury – examples would include day-to-day nursing or staffing issues or an elderly patient suffering a minor fall in a care home
  • other claims where there is a minor injury from which the patient has recovered promptly and without any ongoing symptoms. 

To pursue a medical negligence claim, we would be looking at a value of the damages for your injury exceeding £1,000.

Below this there is no usual entitlement for you to recover your legal costs – so it would not be worth you making a claim via a solicitor. 

Also, the claim needs to be of sufficient value because of potential deductions such as:

  • an insurance premium (to cover the No Win No Fee process)
  • the solicitor’s success fee.

Book A Free Chat

Have you been injured by a medical error? Book a free chat with a Coles Miller medical negligence lawyer to discuss your options. 

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.