Read through our most frequently asked questions, or click on one below to taken directly to the answer.
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Any person with capacity (i.e. individuals who are able to handle their own legal and financial affairs) will have three years to bring a medical negligence claim from the date of the negligent treatment. If the person bringing a claim does not have capacity (for instance minors and those who are suffering from a debilitating brain injury) the three-year time limit won’t apply and that person can bring a claim at any point.
If a claim is brought on behalf of a child, court proceedings must start within 3 years of their 18th birthday. (see FAQ Can I make a claim on behalf of a child?)
We understand that pursuing a medical negligence claim can be a big decision. However, if you do decide to go ahead with a claim, we will handle it from start to finish, and provide you with the support you need every step of the way.
Whether or not someone has capacity to bring a claim is determined by the Mental Capacity Act 2005. Examples of people who may lack capacity include those with:
Your solicitor will be able to determine if someone does not have capacity and will advise you further.
A child under the age of 18 is deemed not to have capacity to bring a claim and so will need someone to bring the claim on their behalf. A parent or guardian can act as a ‘Litigation Friend’, providing instructions to the solicitor.
If lack of mental capacity is indicated in an adult, someone will need to bring the claim on their behalf. This person will act as a ‘Litigation Friend’.
If the case settles, the settlement will need to be approved by the Court. This means that a judge will be asked to consider all of the information from the case (e.g. expert evidence, details of the value of the claim, witness evidence) and the advice of the solicitors before considering whether they are happy to approve the terms of the settlement. This is a safeguard to make sure that a child or someone lacking capacity is not under-settling their case (See How long do I have to make a claim for details on time limits which apply).
When negligence is involved in an injury, the law aims to put you back into the position you were in before the injury happened. Although this isn't always possible, if the claim is successful you will be awarded compensation (usually referred to as ‘damages’). This is the sum of money which will be paid to you to represent your financial losses, and physical and/or psychological pain and suffering.
The two main categories of compensation are general damages and special damages.
General damages are equivalent to non-financial losses. This aims to compensate you for the pain, suffering and loss of lifestyle that you’ve suffered as a result of your injury.
Special damages aim to compensate you for any financial losses you have suffered in the past, or will incur in the future as a result of your injury. For example, the cost of your medical treatment; any equipment; loss of earnings; paid care and help provided by family and friends or professionals; and accommodation costs (such as new accommodation and adapting your home).
The concept of ‘proportionality’ is at the forefront of making a claim for clinical negligence. When a solicitor takes on a case, they have to deal with the case in ways that are in keeping with
Before taking on a case, all law firms should carry out a detailed risk assessment to ensure there is a reasonable prospect of succeeding with the claim. Once a claim has started, they are under a duty to keep this under review at all stages of the case.
A law firm should also consider the likely value of the claim alongside its importance and complexity, and then plan in advance the necessary work. This involves giving consideration to:
In the event of a successful claim, the general rule is that the Defendant pays the costs of the person bringing the claim. However, the Courts will only allow the law firm to recover costs which are reasonable and proportionate to the key matters of the case. In deciding whether the costs are reasonable and proportionate, the Courts will consider the complexity and value of the case, any additional work undertaken as a result of the other party's conduct and any other wider factors involved in proceedings. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred.
A specialist solicitor will be able to advise you as to the likely costs involved as the case progresses and the extent to which they can be recovered from a Defendant or insurer.
This is not an easy question to answer, as every case is different. It will all depend on several factors, such as how your compensation is calculated, the outcome of your negotiated settlement, how much care you will require going forward, etc. (see What is meant by compensation?)
It’s very rare for a medical negligence claim to reach trial, because they are usually solved before it gets to this stage; the courts strongly encourage early settlement of cases.
However, if your case does go to trial, please rest assured that we will be here to assist and support you throughout the whole process.
Settling a medical negligence claim is dependent on so many factors that it's very difficult to estimate exactly how long it will take.
You will be kept updated throughout the whole process so you're aware of what's happening with your claim.
It will be up to their organisation as to what (if any) action they’re likely to face. If the negligence is very serious, it’s likely that an internal investigation will take place and the organisation should act on their findings.
Yes, provided that you’re over 18 years of age and have the requisite capacity.
Children aren’t legally allowed to deal with their own claims, but another person can be appointed to deal with matters on their behalf. Such a person is called a ‘Litigation Friend’. Usually, parents or close relatives act as a child’s litigation friend.
Sometimes, however, a professional litigation friend, such as the Official Solicitor, may act on behalf of a child.
Yes, although the law only allows certain family members to do so. Usually, the deceased’s spouse, children or other dependents will have the right to bring a claim.
If the deceased supported you financially the compensation awarded to you will include an amount to make up for the contribution your loved one would have made towards the family, as well as funeral costs. If the person who died was your family’s bread-winner, and they would have continued working for many more years, then the value of your claim could be significant.
If you are the spouse/civil partner of the deceased, you’ll be able to claim what’s called a statutory bereavement award. You can also claim this if you are the parents of a minor who has died. This award is currently set at £12,980.
Healthcare providers have a duty to be open and honest with you about any mistakes that have happened during your treatment, and you have the right to send a letter to the NHS seeking an explanation and an apology.
If you’d like advice on how to write your letter of complaint, the PALS (Patient Advice and Liaison Service) will be able to guide you through this process. However, lots of people do send complaint letters without the help of PALS – using the service is entirely up to you.
The complaints procedure is generally used by those who don’t wish to sue the hospital for compensation. However, even if you’d like to make a claim, it’s still useful to bring a complaint first as the hospital’s response might help you decide whether your claim is likely to be successful.
For more information, please see our handout on ‘Making a Complaint’.
You may be unsure whether to bring a medical negligence claim if you don’t know how it’ll be funded. The phrase “no-win, no-fee” is often heard in relation to personal injury law, but how does it work?
These are the most popular ways in which to fund a medical negligence claim:
Conditional Fee Agreement (CFA)
A CFA, or Conditional Fee Agreement, is often known as “no-win, no-fee”. It's a contract between you and your solicitor. It means that your solicitor will investigate your claim on your behalf, and, if it is successful, in return you will allow them to keep a percentage of your compensation (usually up to 25%) as a success fee. If it is unsuccessful, you will not be required to pay your solicitors’ fees.
If you are offered a CFA by your solicitor, it will be supported by insurance to cover other fees for which you might become liable.
Before the Event insurance (BTE)
When you speak to your solicitor about the funding of your claim, they should ask if you have ‘Before the Event Insurance (BTE)’, commonly known as ‘Legal Expenses Insurance’. This is often sold as an add-on to other policies such as home insurance, and many people pay for the service without knowing they have it.
If that is the case, depending on the terms, your insurer may offer to fund investigations into a medical negligence claim (although they will only cover a certain amount). This covers the expenses which your solicitor will have to incur while investigating your claim and removes the need for After the Event Insurance.
After the Event Insurance (ATE)
If you have BTE insurance, this will cover the expenses which need to be paid to investigate your claim properly. If you don’t have BTE, then your solicitor will offer ATE insurance. This insurance means that your claim can be investigated in a way that is cost-effective for your solicitor and is how they are able to offer a Conditional Fee Agreement (or “no-win, no-fee”) without risk to themselves. For ATE insurance, a proportion of the cost of the premium will be deducted from your damages if the claim is successful, and the rest will be paid for by the Defendant.
Legal Aid
Now only available in a very limited number of cases, Legal Aid will only fund medical negligence advice in cases where a child suffered a brain injury during pregnancy, while being born or in the first eight weeks of their life. An experienced medical negligence solicitor will be able to advise on eligibility for legal aid and help you with the process.
If for any reason you are not happy with the service that your solicitor is providing, please contact the firm directly through their own complaints management system.
We ask that solicitors who work with our charity adhere to Shine's Code of Conduct. If you believe there has been a breach of any aspect of this Code of Conduct, please notify us in writing, stipulating which part of the Code you believe they may have broken.
Letters of complaint should be addressed to:
Chief Executive
Shine, Unit 4, The Forum, Minerva Business Park, Peterborough PE2 6FT.
If you are unhappy with the general quality of advice and services provided by a solicitors’ firm, please contact the Legal Services Ombudsman.
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