What is Medical Negligence?
Medical negligence occurs when a medical or healthcare professional deviates from the care standards of their profession and causes injury to a patient.
Here, we explain more about medical negligence and give you some important extra detail about the medical negligence claims process.
- About medical negligence
- The 4 Ds of medical negligence
- How much money do you get for medical negligence payouts?
- Must I make an official complaint before claiming against the NHS?
- What happens in private sector medical negligence claims?
- Can I claim on someone else's behalf?
- Who pays the compensation?
- What are the time limits for making a medical negligence claim?
- Why might you want to make a medical negligence NHS claim?
- How do you prove medical negligence?
- What type of healthcare accidents count as medical negligence?
- How does medical negligence Scotland differ from medical negligence England?
- What about medical negligence claims in Northern Ireland?
- How do I find a firm of medical negligence solicitors near me?
About medical negligence?
Medical negligence is the most complicated type of personal injury claim. No two cases are the same and the harm inflicted can range from minor to life-changing, and may even be fatal in extreme cases. Complexity and the burden of proof means they can regularly take years to settle. Also, the medical negligence claims process differs between the NHS and private sector healthcare providers. However, medical negligence claims play a vital role in highlighting and holding dangerous malpractice to account.
What are the 4 Ds of medical negligence?
- Direct cause
There are the types of evidence your solicitor must prove for a medical negligence claim to succeed. These are called The Four Ds.
Your solicitor must demonstrate that a patient to medical professional or patient to healthcare provider relationship existed. Establishing this fact confirms that they owed a duty of care to look after you for the duration of your treatment.
If you've been harmed by their action or inaction, then they have breached that duty and can be liable as a result. Evidence of duty can be as simple as medical records that confirm the professional or provider was treating you.
Dereliction occurs when medical practitioners deliberately or accidentally fail to follow the care standards set by the profession and a patient suffers harm as a result.
For instance, a patient develops an infection or complication due to an unhygienic working environment. Other examples include performing unauthorised procedures, patient neglect and prescribing the wrong medicine. Dereliction is sometimes described as another D: deviation from the acceptable standards of care.
This is the specific action or inaction by a medical professional that directly caused the harm or injury to a patient in their care. For example, operating on the wrong patient or body part because they misread the notes. Other types of direct cause include misdiagnosis, misprescription of medicine, leaving a medical item inside a patient after surgery and causing avoidable scarring or disfigurement.
Damages represent the physical, psychological and financial impact the direct cause of medical harm has had on the victim's life. The figures are calculated by your solicitor based on injury compensation guidelines (15th Edition) set by the Judicial College, which is part of the Ministry of Justice. They are also supported by important evidence like medical records, prescription records, expert witness testimony and the cost of corrective treatment.
How much money do you get for medical negligence payouts?
Every no win no fee medical negligence case is different and is often complicated. That's why it's hard to say how much a claim may be worth at the start and before your solicitor has finished investigating. The potential size of medical negligence payouts depend on a number of factors. These include the circumstances of the negligence, its severity, the recovery prognosis, the impact on your ability to work and on loved ones who may be care volunteers.
General damages cover the physical and psychological trauma suffered. Special damages cover all financial aspects of an injury claim. These could range from loss of income and ongoing medical treatment to rehabilitation, care needs and modifications to home or car. Find out more about damages components on our medical negligence claims page.
Your solicitor will have a more accurate idea of what the claim will be worth after they've investigated the evidence and opened negotiations with the other side.
For a rough idea of what your claim may be worth, try our medical negligence calculator. Alternatively, call us on to find out more.
Must I make an official complaint before claiming against the NHS?
The short answer is no - you don't need to make a complaint directly to the NHS before starting a medical negligence NHS claim. Nor can making an official complaint in the first instance ever prevent you from starting the medical negligence claims process later on.
In our experience however, making an official complaint first is generally helpful in two ways. A complaint will help you find out more about what happened, and possibly even result in an apology or an admission of failure. This extra knowledge will then better help you decide what to do next.
How to make a GP or hospital care complaint
- Ask for a copy of the complaints procedure for the hospital or GP surgery that treated you.
- Follow the directions carefully as this will help your complaint be dealt with promptly.
- The NHS Constitution says you have the right for a complaint to be investigated.
- It also says you have the right to compensation if you've been harmed by negligent care.
Making the complaint locally is a good way to start things moving but you can also go straight to the healthcare provider for your part of the country.
Procedures differ between the UK's regions, so find out more below depending on where you were treated. Complain to:
Whenever you decide to start an NHS medical negligence claim, your solicitor will manage your claim through NHS Resolution. Part of the NHS, this is the specialist insurance department that deals with all medical negligence claims. Find out more about making a claim against the NHS.
What happens in private sector medical negligence claims?
The process for private sector healthcare claims is different. An NHS medical negligence claim is always made against the institution itself. In private sector healthcare, the General Medical Council (GMC) insists that all medical professionals carry their own professional indemnity (PI) insurance. This is because a private medical negligence claim is typically made against the individual medical professional(s) and their PI insurer.
It's not a massive difference but it's an important distinction that can mean private medical negligence claims take longer to process than NHS medical negligence claims. Such claims are usually also more likely to go to a hearing at court. If you're making a private healthcare medical negligence claim, your solicitor will explain the process in detail before starting.
Can I make a claim on someone else's behalf?
Yes you can. That person may be a child aged under 18 or an adult who, for whatever reason, lacks the psychological or physical capacity to make a claim themselves. If you're making a medical negligence claim on another's behalf, you're called a ‘litigation friend'. That means you work with the solicitor and take all necessary decisions that protect the claimant's best interests.Litigation friends are usually parents, family members, guardians, trusted friends or an appropriate official. It's a responsible position and your solicitor will take you through all the details if you find yourself fulfilling that role.If you'd like to talk things through, call us on [medtel] for a confidential chat.
Who pays the compensation?
It's never the individual nor institution who you are claiming against who pays. In a successful medical negligence claim, it is always the other side's insurance company that pays the compensation settlement. The NHS has its own specialist insurer called NHS Resolution. All NHS Trusts pay an annual premium that will cover medical negligence payouts. This way, you can be sure a medical negligence settlement will never take money away from front-line care.
Similarly with a private healthcare medical negligence claim, it will be the other side's insurer that pays. It won't be the individual medical professional or in some circumstances, the private hospital. This ensures the other side is never presented with a bill that they cannot afford to pay.
What are the time limits for making a medical negligence claim?
The medical negligence claims time limit is broadly the same as for other kinds of personal injury cases. Specifically:
- You have three years from the incident or from diagnosis of the harm caused, whichever occurred first.
- If you're acting as a litigation friend for someone whose psychological or physical ability is so compromised they can't claim themselves, then there are no time limits.
- This could be because of the medical negligence incident itself or because of a pre-existing condition.
- For children or minors any age under 18 at the time of the medical negligence incident, you can make a claim on their behalf any time up to their 18th birthday.
- If no claim is made, they then have three years from their 18th to their 21st birthdays to claim as an adult.
There is an administrative process which our specialist solicitors must go through to get a claim underway. If you are near to the medical negligence claims time limit, please contact us as soon as possible to talk about your case.
Why might you want to make a medical negligence NHS claim?
If you've been injured by someone else and it wasn't your fault, we think it's absolutely right to make a claim. First, the law says you can and lays down precise rules to enable you to do so. Second, it gives you the chance for fair justice. This helps you get things back to how they were before the injury as much as possible, even if it can't erase the trauma of the experience. Third, it helps highlight bad practices and negligent behaviour and may prevent someone else from getting injured in the same way.
This is particularly true in medical negligence cases. At worst, negligent medical practices can be life-changing or even fatal for the victim. Doing everything that can be done to get those practices or actions fixed is good for everyone.
The human impact of medical negligence
There are other reasons why making a claim can help and why it's important to do so if you have good grounds. Medical negligence cases can turn lives upside down, for both the victim and their families. The collateral damage can be widespread.
In serious cases, there's the emotional pressure of caring and worrying for a loved one. If they are the main breadwinner, then the financial strain can become very hard to bear. A successful medical negligence claim can help you get through the tough times with interim payments. The final settlement will help you put your life back together over the long term.
How do you prove medical negligence?
These types of claims are often complicated and can take time to finalise. It's not uncommon for a successful medical negligence case involving serious harm to take three years or more to settle. Your solicitor will be able to give you their view of how your claim might proceed after they've investigated it in detail.
However, the medical negligence claims process broadly follows those set by the Ministry of Justice for other claim types. It may seem involved but don't worry, your lawyer is there to take the legal strain so you can focus on recovery. They'll ask for your help when they need it but otherwise will just get on with the job.
This is the moment you or a loved one realises something has gone wrong. It could be an immediate and obviously recognisable after-effect of treatment or a procedure. Alternatively it may be that treatment has made a pre-existing condition worse or triggered a new one. It's at this point that you'll likely have taken professional medical advice to get things checked out.
You may wish to make one, but you're under no obligation to do so whatsoever. Not doing so has no effect on your rights or ability to make a medical negligence claim.
However, a complaint to the hospital or GP surgery involved can sometimes help shine some early light on the situation.
When you talk confidentially to one of our legally trained advisors about claiming, we'll help you understand if you're eligible or not. If you are, our advice is only proceed if you're comfortable doing so and feel that decision is right for you and yours. There's no pressure and no rush.
If you do, that's when we'll put you in touch with a specialist medical negligence solicitor from our national network of approved law firms.
The specialist solicitor we place you with will check the details and confirm whether or not you're eligible to make a no win no fee medical negligence compensation claim. All the solicitors we work with are able to work on a no win no fee basis.
With a no win no fee agreement, there are no up-front costs and no hidden charges. You pay nothing if you lose your claim. If we win your case, you'll typically pay around 25% of the compensation awarded to you towards legal fees. In the very rare circumstances where no win no fee isn't possible, your solicitor will explain your options.
Your solicitor will gather all the relevant evidence and build your claim. This will include things like medical records, photography, an expert medical assessment and relevant financial evidence. To keep your claim progressing, be ready to work with them and respond to questions or requests in a timely fashion.
When your medical negligence claim is ready, your solicitor will submit it to the other side. This could be NHS Resolution or the relevant medical professional or institution if it's a private healthcare claim. This document, backed by your evidence, details why you think the other side is responsible for the harm done to you.
The other side may accept or deny liability. If they accept liability, your solicitor will negotiate with them to reach a settlement figure with which you and the other side agree.
- If the other side denies liability then your solicitor will begin court proceedings.
- Your solicitor will also begin proceedings if a figure cannot be agreed, despite the other side accepting liability.
- They'll keep negotiating anyway as settlements are often reached out-of-court, right up to the last minute.
- If no agreement is reached, then your claim will go before a judge at a formal court hearing.
- Going to court is generally rare in other types of personal injury claim but happens more often in medical negligence claims.
If the other side accepted liability and settlement is reached, then your claim has succeeded. The other side will make the payment, usually within four weeks of the judgement. Your solicitor will deduct the pre-agreed fee from your compensation as payment for winning your case.
When a court hearing is needed
If negotiations have irretrievably broken down or the other side refuses to accept liability, then your medical negligence claim will go before a judge at a court hearing. The judge will decide liability and any damages. If you win, the other side pays your damages. If you lose your claim at this point, it's no win no fee so you owe nothing. Your solicitor may need to arrange insurance to ensure that your claim is risk free.
What type of healthcare accidents count as medical negligence?
Basically, it's any mistake or omission in a medical or treatment or procedure that results in harm to the patient that was avoidable. They can occur with the NHS and private healthcare providers. They can also occur right across the medical and treatment spectrum, including:
- GP surgery and hospital negligence
- Misdiagnosis and misprescription negligence
- Surgical negligence
- Birth injury negligence and gynaecological treatment error
- Cancer negligence
- Fatal negligence
- Avoidable scarring and disfigurement negligence
- Mental health care and psychiatric negligence
- Allergic reaction negligence
- Physiotherapy negligence
- Dental negligence
- Optician and optometry negligence
- Care home negligence
- Cosmetic surgery negligence in an NHS or private hospital
- Beauty treatment negligence by a specialist salon
This isn't an exhaustive list so don't worry if your experience isn't highlighted here. We'll still be able to advise you, so call us for a confidential chat on [medtel]. For more details, visit our medical negligence claims page.
How do medical negligence claims in Scotland differ to those in England?
Some elements of the claims process differ in Scotland. Medical negligence claims can still be made using no win no fee, but there are some legal differences to the way claims are handled in England and Wales.
The basic terminology
In England and Wales, the person bringing the claim is called the ‘claimant' and the individual or institution you're seeking compensation from is called the ‘defendant' or just ‘the other side'. In Scotland, the claimant is called ‘pursuer' and the other side ‘defender'.
The basic process
In Scotland, medical negligence claims are lodged in court first, with much of the investigation taking place afterwards. In England and Wales, investigation happens first and the claim only goes to court only if negotiations are deadlocked. Scottish claims are contested either at the nearest Sheriff Court to where the incident happened or in the Court of Session in Edinburgh. This procedural difference often means a claim will take longer to resolve.
Funding your claim
No win no fee claims in Scotland broadly work as they do elsewhere in the UK:
- No charges if the claim fails
- No up-front costs
- Agreed deductions by your lawyer from your award only if they win your claim.
Types of damages
In Scotland, damages are defined differently.
- General damages for pain, suffering and loss of amenity are called ‘solatium'.
- Special damages covering loss of income are called ‘past wage loss'.
- Special damages covering all other financial expenses or additional care assistance you may need are called ‘services'.
For a medical negligence claim in England and Wales, compensation will typically include general and special damages. In Scotland, the compensation will usually include solatium, past wage loss and services.
- While the definitions are different, the compensation components are effectively the same
What about medical negligence claims in Northern Ireland?
There are minor differences between England and Wales and Northern Ireland for medical negligence claims.
- The Four Ds of duty, dereliction, direct cause and damages used in England and Wales are all defined by the two terms ‘fault' and ‘causation (avoidable harm)'. Practically, this means the burden of proof is the same.
- Legal aid is not available for compensation claims in England, Wales or Scotland, but it can be available in Northern Ireland.
- Your medical negligence solicitor will be able to explain the process and your options in detail.
We can help you with a medical negligence claim in Northern Ireland. Call us on [medtel] for a confidential chat with one of our friendly legal support advisors.
How do I find a firm of medical negligence solicitors near me?
Call us on for a confidential chat. We'll be pleased to help.
Talk to us about your experience in your own way. If you're eligible to make a claim, we'll put you in touch with the expert medical negligence solicitors who are right for you. They'll be able to handle your claim efficiently by phone and email.