What Do Medical Negligence Solicitors Do When Negotiating a Compensation Claim?
Healthcare professionals are only human. Like everyone else, they make mistakes. Most of the time, these mistakes are negligible errors which do not result in harm. But sometimes a medical mistake causes injury which gives rise to the possibility of compensation.
Medical negligence solicitors are specialist lawyers who build and shape the compensation claim. They gather factual and expert evidence, build your case, negotiate settlements and generally act as a trusted ally for injured patients. The quality of the work performed by your medical negligence solicitor can make the difference between winning and losing your case.
What is a medical negligence solicitor?
Pursuing a medical negligence claim is often complex and quite different to pursuing other types of personal injury claim. It is therefore important to find a solicitor who specialises in compensation claims brought against the medical profession. A medical negligence solicitor will have received specialised training and will work either exclusively or largely on clinical negligence claims.
Medical negligence solicitors spend their days gathering medical reports and other evidence, combining this evidence into effective legal arguments and negotiating financial settlements against GPs, insurance companies and the NHS. They typically have in-depth medical knowledge in addition to their legal knowledge.
For the victims of medical negligence, hiring a medical negligence solicitor is the first step in making a successful compensation claim.
What happens when you first contact a medical negligence solicitor?
When you first contact a firm of medical negligence solicitors, they will want to know the details of your story, starting with the reason why you were seeking medical advice, and finishing with the clinician’s mistake and the impact it has had on your health and wellbeing.
There may be many facts to deal with so it is important that you write down as much as you can remember. Names, dates and timelines are significant as they will help your solicitor to determine what went wrong, and whether it would be in your best interests to pursue a claim.
Good medical negligence solicitors will usually offer a free initial consultation. They use this time to:
- Listen to your story
- Determine whether you are eligible to make a clinical negligence compensation claim
- Demystify the legal process so you understand what is likely to happen during your case and why.
How do I know if I have a valid legal claim?
If you decide to press ahead with a compensation claim, your medical negligence solicitor will begin to investigate your case. To make a successful claim, your solicitor must establish:
- Negligence – that the healthcare professional did something that fell below the standard of care expected of a reasonably competent clinician in the same field of medicine; and
- Causation – that the medical error caused you an injury, prolonged your treatment or made an existing medical condition worse.
This may sound very simple, and in other types of personal injury cases it is simple. However, medical negligence claims have a unique complexity. Patients who seek medical advice invariably will have experienced problems with their health before the medical mistake occurred. It can be challenging to show that the injuries suffered were the result of a medical error, and not simply a consequence of the underlying medical condition.
What must medical negligence solicitors prove in a medical negligence compensation claim?
When bringing a clinical negligence claim, it is up to you to prove that the person you are suing made the medical error and was responsible for your injuries and financial losses. Put into legal jargon, you have the “burden of proof.”
When a person has the burden of proof in a medical negligence claim, they must show that “it was more likely than not” that the clinician was negligent, and that their negligence caused physical or psychological harm. Medical negligence solicitors refer to it as proving something on “a balance of probability.”
In simple terms, you must prove something was more than 50% likely to happen. This is a much lower level of proof than is required in a criminal case where the prosecution has to prove its case “beyond reasonable doubt.”
How do medical negligence solicitors build a robust medical negligence case?
Despite the lower burden of proof, your medical negligence solicitor must still work hard to prove your claim. Since your claim is based around a medical mistake, the most important evidence will come from your medical records and the opinion of an independent medical expert.
The medical expert is charged with providing an independent assessment of the medical facts surrounding your claim. While each case is different, you can expect the expert to:
- Review your medical notes
- Peer review your case, including the treatment prescribed by your clinician and any subsequent damage to your health
- Judge whether medical negligence had occurred
- Ascertain whether the clinical mistake has caused you harm
- Give you at least one physical examination
- Give a clear prognosis informing you what, if any, long term effects the medical error may have on you
- Figure out what further treatment and support could be needed in the future.
During this time, the medical negligence solicitor may also be gathering witness statements. This might include statements of fact from family members involved in the process, clinical staff and others present at the scene.
All this effort allows your solicitor to build a good picture of what happened and gather strong evidence to prove that medical negligence took place.
How do medical negligence solicitors make the legal claim?
Once the case is established, your medical negligence solicitor will send an official “Letter of Claim” to the person you are suing. That person will be the relevant NHS Trust (if the negligence occurred in an NHS hospital) or the clinician himself (if the negligent treatment was provided by a GP, dentist or private clinician.)
The Letter of Claim sets out the details of the allegations being made and an estimation as to the value of the claim (how much compensation you think you should receive.)
The Defendant has four months to respond to the letter, and must specify whether they admit liability or whether the claim is denied.
How do medical negligence solicitors negotiate a settlement?
If your solicitor has prepared your case well, there is a very good chance that the Defendant will admit liability and enter into settlement negotiations. The medical negligence solicitor handling your claim will be able to provide you with legal guidance during the entire process and secure the maximum compensation for your injuries.
The aim of compensation is very simple: to return you to the position you would have been in but for the medical mistake. Thus, the amount of compensation you receive will depend on the nature of your injury and the impact it has had on your health and wellbeing. You can expect to be recompensed for the following:
- Pain and suffering
- Loss of lifestyle (the way your life has changed post-injury, such as loss of ability to work or enjoy hobbies)
- Lost earnings and future earnings
- Treatment costs
- The cost of prosthetics, medical aids and other medical and personal equipment
- Travel costs
- Assistance with day-to-day activities and other personal care.
Receiving damages will not make you better but it will enable you to achieve reasonable financial protection against the consequences of your injury. Reputable medical negligence solicitors will work hard to achieve a fair and reasonable level of compensation so that you can pay for your medical care and have the resources to cope with any problems that arise in the future.
Will I have to go to court?
Cases that cannot be settled through negotiation must “go to Court.” This is not as scary as it sounds. It simply means that your case will be decided by a judge at a trial. Most Claimants are pleased to hear that only a tiny proportion of medical negligence claims are settled in this manner.
Once your solicitor makes an application, the Court will provide a timetable for your case with all the steps leading up to trial. The Court strongly encourages the early settlement of medical negligence cases and there will be plenty of opportunities to negotiate the settlement of your claim. Even if your solicitor makes a Court application, there is a strong likelihood that your case will settle out of court.
In the very unlikely scenario that your case goes to trial, your solicitor will guide you through the process and ensure that you have the help and support you need.
Is there a time limit for bringing a medical negligence claim?
It is vitally important that you seek legal advice as soon as possible after the substandard medical treatment. This is because all medical negligence claims must be brought within:
- Three years of the negligent treatment or
- Three years of you becoming aware of your injury if this is later.
These time limits are rigidly applied by the Courts. It is extremely unlikely that you will be allowed to bring a medical negligence compensation claim if you have missed the three-year window.
Can you make a claim on behalf of someone else?
A parent or guardian can make a claim on behalf of an injured child. They have until the child’s 18th birthday to make a claim. The child then has a further three years to make a claim themselves, i.e. until they are aged 21.
A claim can also be made on behalf of an adult who lacks the mental capacity to conduct their own medical negligence claim. Such a person is known as a “protected party.”
The parent or adult claiming medical negligence compensation on behalf of a child or protected party is called a “litigation friend.” They are responsible for hiring the medical negligence solicitor, communicating information and making decisions regarding the claim. The litigation friend has a legal duty to act in the best interests of the injured person.
How do medical negligence solicitors get paid?
The cost of investigating a medical negligence claim can be extremely high. Before you set the ball rolling, it is important to figure out how you will pay for your legal costs and expenses.
In broad terms, there are two main methods of funding a claim. The first is a “legal expenses” insurance policy that you have taken out before the medical incident occurred. Some people have legal expenses cover included as part of their auto or home insurance. Financial limits apply to these policies, but they are usually enough to cover the costs of investigating and pursuing a moderately sized medical negligence claim.
The second funding option is a Conditional Fee Agreement, also known as “No Win, No Fee.” Under this arrangement, you only pay your medical negligence solicitor if he or she wins your claim. Then, your solicitor will retain a “success fee” from the damages you receive at the end of the claim. The success fee cannot be more than 25% of your compensation.
A No Win, No Fee funding agreement is often coupled with “After the Event” insurance. ATE is intended to pay for legal expenses such as experts’ reports and court fees if your claim is not successful, and will also cover your opponent’s costs if these are awarded against you. Most medical negligence solicitors will help you find a suitable policy if ATE is recommended in your case.
A No Win, No Fee agreement combined with ATE allows most injured patients to fund a medical negligence claim at little or no cost to themselves.
At the Medical Negligence Experts, our aim is to help injured patients get back on their feet quickly after suffering from medical negligence, so we will make sure that you receive all the support you need at this difficult time. Our specialist medical negligence solicitors are dedicated to providing high-quality advice at affordable prices, including No Win, No Fee case handling. We work hard to ensure the very best outcome for your claim.
We offer a free, no-obligation consultation to discuss your options. If you have further questions, or are thinking about making a medical negligence claim, please call us free today.
Need some help?
Am I eligible?
If you have suffered from medical negligence in the past 3 years, the short answer is yes.
However, medical negligence can be complicated, so we recommend that you speak with one of our expert solicitors - It’s Free.
How much could I claim?
As every medical case is different, the amount of compensation paid out can differ. Varying factors lead to the final figure include: Level of negligence, earnings missed out on, future losses and more.
Our experienced team of experts will give you an indication of how much you could potentially claim.
How does the process work?
We understand that when making a claim it’s important to know what to expect and when to expect it. That’s why we make the process as transparent as possible.
Your solicitor will gather all the evidence and will notify the negligent party of your claim against them. With your dedicated solicitor negotiating on your behalf, you will be kept up to date every step of the way.
Why should you use us?
No Win No Fee
We offer a No Win No Fee* service on all our claims - We assess each claim on its merits with the information provided, which aids us to determine its likely success rate. This takes the risk away from you.
Our experienced solicitors are experts in securing compensation no matter the level of negligence.
We are committed to securing the best possible outcome for you, while providing friendly support every step of the way.
Personal Dedicated Solicitors
On contact, you will be allocated your own expert Medical Negligence solicitor who will be there every step of the way. You will be provided with a direct phone number and direct email address of your solicitor.
Expert medical negligence solicitors working for you
We specialise in helping victims of medical negligence claim the compensation they deserve.
We work on a No Win No Fee basis, meaning if we don’t win your case, you don’t pay! Once you make contact, your experienced solicitor will work to recover the maximum compensation you are entitled to.
Whether you are ready to make a medical negligence claim, or you would just like a free conversation with a legal professional, we have experts on hand to give you all the information you need. Take the first step to getting what you deserve by filling in our quick contact form and we will call you back whenever suits you.