Can you sue for medical negligence

We’re here to put things right when our healthcare system has failed you or a loved one. Whether you’ve suffered from GP negligence or hospital negligence, you may be able to claim compensation. This can help you recoup financial losses you’ve experienced and fund any extra levels of care you need as a result of your injury.

But who exactly can you sue and how? Is there a time limit? To bring forward a successful medical negligence claim, there is a lot you need to be aware of. We can offer you guidance based on our comprehensive knowledge and experience with the legal system. If you’re looking for information on how to start a medical negligence claim, get in touch with our legal experts here at Hugh James.

In this section of our medical negligence guide, we will cover:

• How to sue for medical negligence
• How long after can you sue for medical negligence?
• How much can you sue a doctor or hospital for medical negligence?

What is medical negligence?

All medical professionals have a legal duty of care to every patient. Medical negligence occurs when a healthcare practitioner deviates from the standards of their profession and delivers substandard care to a patient that results in injury, illness, or causes a previous condition to worsen.

To successfully sue for medical negligence, the claimant has to prove that they have suffered loss as a direct result of clinical malpractice and negligence.

What are the different types of medical negligence?

There are many instances where you could be able to sue for medical negligence. These include:

Misdiagnosis

This occurs when a medical practitioner fails to diagnose the condition a patient is suffering from. This may have caused them to be prescribed the wrong treatment or none at all, leading to their condition worsening.

Surgical negligence

Surgeries come with inherent risks and occasionally mistakes happen. This could involve the wrong part of the body being operated on, the wrong operation being performed, or foreign items being left behind.

Anaesthetic negligence

Anaesthetic is a common part of medical procedures but in rare cases, injury or illness can occur due to improper application or a failure to monitor how it is affecting the patient.

Negligent management of long-term or chronic conditions

Some medical conditions need long-term care and treatment. If a medical professional fails to monitor the impact of the treatment properly, further injury or illness can take place.

Negligent pre-treatment advice

Patients are meant to be informed about the side effects of any procedure or treatment, along with any alternatives available. If they are not informed, or if something goes wrong, medical negligence may have taken place.

Negligent management of pregnancy and delivery

Birth injuries involve any harm that comes to the mother or baby during pregnancy or delivery as a result of malpractice or negligence.

Dental negligence

Medical negligence can also occur due to inadequate dental treatment and patient care. Negligent dental care can cause severe discomfort, difficulty eating, disturbed sleep, and even tooth loss.

If you believe you’ve suffered from any of the above because of medical negligence, our solicitors can help you bring a clinical negligence case against individual healthcare professionals or a medical institution.

How to sue a doctor or hospital for medical negligence

If you or a loved one has suffered from medical negligence, you don’t have to face it alone. We’re a medical negligence firm that is top-ranked by both the Chambers & Partners and Legal 500 so you can trust us to deliver consistently excellent service to our clients.

Just take the following steps to make a medical negligence claim:

• Make an enquiry with our experts
• Discuss your case with our team during a free consultation and put forward a complaint
• Gather evidence to prove causation in your medical negligence case

We’ll do everything we can to resolve your claim outside of court, but if court proceedings are initiated you may have to appear in court. If you do, our solicitors will be on hand to ensure you’re comfortable with the process.

What is causation in medical negligence?

Establishing causation is an important part of every medical negligence case. Essentially it has to be proven that a breach of duty identified has caused some additional harm or injury that would not have otherwise been suffered. Normally an independent expert will be needed to support the causation aspect of the legal test. This expert may be different to the expert needed for breach of duty.

What evidence do I need to sue for medical negligence?

Although each case is unique, the types of evidence needed to prove medical negligence remain the same. To support your claim, you’ll need the following:

Medical records

Your medical records will be helpful in assessing the level of care you received and whether this care caused or contributed to any injury that you’ve suffered. The lawyers here at Hugh James can source this information so that we can begin assessing it as soon as possible.

Following review of the medical records, should we consider that your injuries may be linked to medical negligence, then we will have your records assessed by an independent medical expert, who will be asked whether the 3 legal tests above are fulfilled and to provide the necessary evidence for your claim. Should this expert be supportive, we may arrange for you to be examined by them and a further report provided. This will include the extent of the injuries and how they have impacted and will continue to impact your everyday life.

A detailed statement from you

A detailed statement can help to determine when the medical negligence occurred in your opinion as well as set out the impact it has had on your daily life. In your statement, we will ask you to recall each stage of the treatment and inform us when and in what way you consider the negligence occurred. This may be across several stages depending on the type and level of negligence you’ve suffered.

We will then ask you to talk about the impact it has had on your life. This can involve both physical barriers, like getting to your place of work, or mental barriers such as depression and anxiety. This will show us to what extent the medical negligence has impacted you, which will be useful when we come to consider the value of your claim.

Other witness statements

Taking statements from friends and family members can also assist, both to support your allegations of medical negligence and your claims as to how the negligence has affected your daily life . These statements will provide added insight into how you were before and after your injury, which may go a long way in supporting your claim.

Photographs

If the medical negligence has caused a physical injury, then it is helpful to have photographs that support your statement and claim. These could be before and after pictures, to show how the medical treatment has impacted your body.

We understand that medical negligence injuries aren’t always visible on the surface, so don’t worry if you can’t provide any picture evidence.

Expert evidence

We will need to instruct an expert in the same field as the clinician or clinicians who treated you to review your medical records and the other evidence listed above and reach his or her independent view on whether the treatment you received was negligent.

If that expert is able to identify negligence in the course of your treatment, we will need to go on and instruct other experts to provide reports on the extent and severity of damage the negligence has caused.

Will my treatment be affected if I sue for medical negligence?

In short, the answer is no. The NHS is under an obligation to treat a person, and that is not influenced by a patient pursuing a claim.

A patient may find that they will need to see a different doctor to who was involved in the care in question.

Nevertheless the doctors treating a patient are unlikely to be aware of a claim being investigated and pursued, especially at the initial stages of investigations, with all related matters being dealt with by an entirely different department. A treating doctor may become aware of the claim if they are required to give evidence about the treatment they have provided. However that will not impact the treatment you receive.

Can I sue the NHS for medical negligence?

We try to make the process simple when making a claim for medical negligence. We will arrange a free initial consultation to discuss your case. We’ll then let you know whether or not  we believe your claim is likely to be successful.

If we consider you have a claim, we’ll begin collecting the aforementioned evidence to try to prove medical negligence has occurred. This includes medical records as well as statements from you and/or witnesses close to you. All of the evidence will then be assessed by our expert solicitors and medical experts to decide if the treatment received was negligent (i.e whether the three tests mentioned earlier can be fulfilled). Following this, your injuries may need to be assessed by an expert so we can assess the extent of the impact of the negligence.

We’ll then begin collecting information and evidence about your care needs and the cost of your rehabilitation, home adaptations or future treatments that you require as a result of your injury. This will allow us to provide an accurate settlement figure for the case.

Your solicitor will then try to resolve the case outside of court, by serving a letter of claim, or letter before action. If the defendant denies negligence, or  a resolution cannot be found, there may be a need to issue court proceedings. Most clinical negligence cases do not end up in court, but if your case does reach that stage then we’ll be by your side throughout the process to ensure you’re fully prepared and as comfortable as possible.

Even if court proceedings are initiated, your case may still not go all the way to trial. Settlements can still be agreed before this and there are several stages following the issue of proceedings before trial. Whatever happens, you can count on us to fully support you throughout the process.

How long after can I sue for medical negligence?

As per the Limitation Act 1980, there is only a specific timeframe after an incident in which you can make a claim. This is typically a period of three years, and it begins after the incident has occurred or when you became aware of the negligence.

In some cases, there are mitigating factors that affect how long after an incident you can sue for medical negligence. These typically include if the claimant is under the age of 18, has passed away, or has been diagnosed with a mental impairment.

Every case is different when it comes to medical negligence, so be sure to read our guidance on time limits to see what it means for your claim.

Can I sue for medical negligence after 3 years?

Not normally, no. The time limitation for medical negligence claims is three years, so any claims brought after this period may be statute barred. That’s why it’s important to seek legal advice as soon as you can.

However, there are instances where you may be able to pursue your claim after three years. For example, if the claim is on behalf of a child under 18, if you lack capacity or if you only found out that you may have received negligent treatment after the 3 year period has elapsed.

Children

If the claimant is a child under 18, the three-year time limit does not start to run until the child’s 18th birthday. This means children have until their 21st birthday to issue a claim in court.

Children under the age of 18 cannot make the claim themselves but parents or adults can do so on their behalf. If the claim is successful, any compensation will be transferred to a secure bank account and can be accessed by the claimant once they turn 18.

However, if an individual who suffered injury or harm as a result of medical treatment as a child is deemed to lack the mental capacity to make a claim as an adult, the limitation period does not apply.

Death

If a relative has died as a result of medical negligence, you have three years from the date of death to bring a claim on behalf of the estate or any dependents.

Mental disability

There are special rules in place for claimants who are “protected parties”. If a claimant lacks mental capacity, then the three-year limit does not apply at all.

How much can you sue a doctor or hospital for in a medical negligence claim?

Medical negligence claims are complex so there is no set amount of compensation you could receive. This will depend on the individual circumstances of your case, including who you are bringing a claim against, the type of medical negligence you’re suing for, and whether we can prove you have a valid case.

What compensation could you receive if your medical negligence claim is successful?

The compensation you receive should improve the quality of your life and cover any costs that you’ve incurred since the negligent treatment. This includes:

General damages

This is compensation for the injury you have sustained. It covers any pain, suffering or loss of quality of life caused by the negligence. The level of compensation you receive for general damages will be determined by the severity and longevity of your injury, following a thorough assessment from an independent medical expert.

Special damages

Special damages are designed to reimburse you for any past or future financial losses incurred as a result of your injury.

Past losses include:

• Private medical treatment and rehabilitation
• Prescription charges/medication
• The purchase of aids and appliances
• Loss of earnings
• Travel expenses
• Care costs (including gratuitous care provided by friends and family)
• Housing adaptations
• Future losses can include:
• Future loss of earnings
• Loss of pension
• Accommodation costs
• Future private medical treatment and rehabilitation
• Aids and appliances
• Care costs (including gratuitous care provided by friends and family)

It’s important to note that these lists are not exhaustive and that other costs that you believe are connected to your injury will be assessed by our experts when you instruct us.

The best way to ensure you recover all your financial losses is to keep a copy of all relevant receipts and invoices so that we can prove what you purchased and how much you spent. We will then use this evidence to try to get you the maximum compensation possible.

What is the average NHS negligence payout?

According to NHS Resolutions, payments for settled claims in the year 2021/22 came to a total of £2.459 billion. The average NHS payout for medical negligence cases is estimated to be around £50,000.

How much you get from your medical negligence claim depends on the severity of any injuries or illness incurred, as well as any financial losses. The court officials will determine the amount of compensation you receive if you are unable to settle outside of court.