A Guide To: Medical Negligence ClaimsPaul Woolliscroft
This article serves as a short guide to medical negligence claims, covering topics including fatal accidents, medical negligence resulting in death, how to make medical negligence claims and what will happen when you do.
Firstly, let’s consider what happens once you’ve decided to take advice on making a medical negligence claim. If you consider you have sustained injury or losses attributed to medical negligence, you should discuss your claim with your solicitor.
Remember that you cannot succeed in a medical negligence claim unless:
- Independent medical experts (other doctors) are willing to provide reports saying that the treatment you received fell below the standard of reasonable competence (we call this issue breach of duty), and,
- An independent medical expert is willing to provide a report explaining whether, and if so, to what extent the outcome for your medical condition has been adversely affected by the sub-standard treatment you received and, identifying the nature and the extent of the damage caused (we call this issue causation).
The team at Tinsdills will review your claim and take stock of the merits of the claim at each stage as more information and expert evidence becomes available, helping you to build the strongest possible case.
Steps Towards Making A Medical Negligence Claim
Your claim will then follow the below steps – these could be in a slightly different order, or might not all be necessary, depending on the specific nature of your claim. Throughout, we will consider what rehabilitation might help you and liaise with your opponent about this.
On your behalf, the medical negligence team at Tinsdills Solicitors will:
- Consider with you the benefit in making a formal complaint to the treating doctor or service provider and reviewing any response.
- Identify the relevant medical record to be obtained and request copies of your medical records.
- Identify the issues to be investigated and the appropriate independent experts to instruct.
- Obtain independent expert evidence on breach of duty; causation and your present condition and prognosis. This may involve you being examined by the expert(s) so that they can prepare their report.
- Send a letter of notification/letter of claim to the hospital or clinician identified to be at fault setting out the allegations being made and providing a summary of losses sustained.
- Consider the response to the letter of claim.
- Identify the issues between you and your opponent on the issue of both breach of duty and causation.
- Consider with you the value of your claim in the light of the expert evidence on causation, present conditions and prognosis.
- When it is possible to do so; assess the value of your claim and enter negotiations with a view to settlement.
- If a negotiated settlement is not possible, either because of an issue over breach of duty and/or causation or if there is insufficient time before the 3-year limitation period expires, we will start court proceedings.
Medical Negligence Claims Resulting In Death
Inevitably, the steps will be different for claims seeking compensation for medical negligence resulting in death. In these circumstances, family and relatives should still begin by speaking to our legal team at Tinsdills Solicitors, before following the steps below. As before, some of these steps may not be necessary or may be in a different order, depending on the specifics of your claim. Tinsdills will review your claim at all essential stages as more information becomes available, and proceed through the below steps with you.
- Firstly, you should contact Tinsdills to discuss what has happened. Be prepared to tell us if your relative left a Will. If so, be prepared to tell us who the executors are and whether a Grant of Probate has already been obtained.
- There may have been a post mortem and the Coroner may have opened an inquest into the death. It may, in some cases, be necessary to wait for the outcome of the Coroner’s inquest before we can make progress with a claim. We are able to represent the family at the inquest, if you wish.
- We will then identify all appropriate witnesses to the circumstances leading to the death. It’s important to preserve all documentary evidence as to your relative’s finances, income and pensions (if any).
- Tinsdills will work with you to identify all persons having an expectation of a benefit from the deceased (financial or non-financial) at the date of death so as to identify the dependants for whom claims can be made.
- Next we will request copies of the inquest documents and relevant medical records of the person who has died.
- Then we will identify the issues to be investigated and the appropriate independent experts to instruct. The same investigation is required to find evidence to prove both breach of duty and causation.
- We will prepare a calculation and a schedule setting out the claims to be brought for the benefit of the Estate and also for the benefit of any surviving spouse, and any dependants eligible to bring claims.
- We will then move on to sending a letter of notification/letter of claim to the party at fault setting out the allegations being made and providing a summary of the losses sustained.
- We will consider the response to the letter of claim.
- Next, it is necessary to take stock, to identify what, if anything, can be agreed and what remains in issue. We then review the case as a whole and consider with you the possibility of seeking to negotiate a settlement to avoid issuing court proceedings.
- We will then consider if any additional evidence might be required to prove those aspects of the claim that remain in issue.
- If a negotiated settlement is not possible, we will start court proceedings.
If you are confused or require guidance or reassurance at any point throughout these processes, you should contact your solicitor at Tinsdills looking after your claim. We will gladly explain or clarify the procedure so that you feel comfortable and informed throughout. If you would like to learn more about our medical negligence services, click here.