Making a Clinical Negligence Claim - How it works

How a Clinical Negligence Claim Works

Against whom Can a Clinical Negligence Claim Be Brought?

If your clinical negligence case relates to treatment that was provided under the NHS, your clinical negligence claim will not be directly against the particular clinician(s) from whom you received treatment. The body that employs the clinician(s) is legally and financially responsible ("vicariously liable") for the actions of their employees. Where negligent harm has occurred, they are not allowed to seek to recover their costs from the healthcare professional(s) involved. This means that any clinical negligence compensation you receive will not come from the pocket of the clinician(s) involved, but will be dealt with by their employers. In cases of clinical negligence that relate to treatment in a hospital or specialist centre, the local NHS Trust will be responsible. In claims that relate to private healthcare, the clinician(s) in question may well be directly liable.

When Can a Clinical Negligence Claim Be Brought?

In almost all cases, Court proceedings have to be started within three years of the negligent treatment. If you had no reason to suspect that the treatment was negligent at the time, Court proceedings have to be started within three years of the point at which you might have been expected to realise that your treatment was negligent. Special rules govern cases which relate to children (see below).

If you decide to bring a Court action, it is important you instruct your solicitor to begin work on a claim as early as possible: he or she will need time to investigate and prepare your case before they can start the Court proceedings.

What Is Involved in a Clinical Negligence Claim?

A clinical negligence claim can, broadly speaking, be split into 2 phases. In the first phase, your solicitor will collect information about your clinical negligence case, and seek expert opinion regarding what happened to you. This phase is known as the "investigative" stage of a clinical negligence claim. It will include the following steps:

  • your solicitor will obtain all relevant medical records, and undertake a preliminary analysis of them;
  • one or more medical experts will be instructed to analyse your case. They will look through the case notes, and may also meet and examine you. On the basis of this evidence, these experts will produce formal reports, setting out their views on the treatment you have received;
  • your case will be assessed by an independent barrister ("Counsel"), who will give written advice as to the strength of the clinical negligence claim.

If, at the end of this process, your solicitor advises you, on the basis of what he or she has found out, that your clinical negligence case is worth pursuing, then your clinical negligence case will enter a second phase. This phase starts with allegations of clinical negligence being put to the Defendants in a formal manner and - unless, as often happens, a settlement is reached along the way - ends in a courtroom.

How Long Does a Clinical Negligence Claim Take?

You have to be prepared for the fact that clinical negligence litigation is, in most cases, a long-drawn-out process. The solicitor who handles your claim is dependent on other parties being efficient and cooperative, and this is frequently not the case.

In the first instance, it may take a while to obtain all medical records and other relevant documents from the Defendants (and maybe other parties, too). Sometimes, it is necessary to have a preliminary Court hearing, just to obtain all the necessary documents, and this will have to be done before the investigation of your clinical negligence case can begin in earnest.

Later in a clinical negligence case, obtaining the opinion of medical experts often takes some time. The experts used in clinical negligence cases are almost always practising clinicians themselves; they all have very demanding schedules and, as a result, they often require a considerable amount of time to produce a report. The amount of time it will take to investigate your claim will therefore depend on the number of experts whose opinion is needed, the availability of such experts, and the complexity of the clinical issues involved in your case.

Once your clinical negligence has been fully investigated, the process of putting allegations to the Defendants, receiving and acting on their response and, if necessary, preparing for a Trial can take a long time, too.

Although it is impossible to give very precise estimates, as a general rule, it will take at least 12 months to complete the investigative phase of any case and, if a case is complicated, it can take twice as long as this. On a few occasions, it may take even longer, though this generally only happens when the Defendants are particularly unhelpful, and it is necessary to seek the Court's assistance in forcing them to "play ball".

The second phase of a clinical negligence, during which the sides put formal arguments to each other and, if a settlement cannot be reached, proceed to go to Court can also be extremely protracted. Again, the timeframe is best estimated in years, rather than months; all things being equal, it should not be more than 2 years but, once more, Defendants who are determined to be awkward can increase this period markedly.

If you are unlucky enough to have a complicated clinical negligence case with uncooperative Defendants, there is a possibility that your clinical negligence case could last 6 years or more from start to finish. More usually, however, things progress more smoothly than this; indeed, these days, it is very unusual for a clinical negligence case to progress as far as a Trial (see below).

Will I Have to Appear in Court?

Only a small proportion of clinical negligence cases ever reach a courtroom. In the vast majority of cases, some sort of settlement is reached long before this stage.

In the last few years, rules have been introduced covering the way in which the early stages of a clinical negligence case is run. These rules are known as the "Pre-Action Protocol"; by and large, they aim to encourage all parties to settle cases more quickly and at less cost. More and more cases are now settled before legal proceedings are issued; under the new rules, you and the Defendants are encouraged to share information about your complaint, to try and settle the matter quickly.

If your clinical negligence case is not settled at this stage, formal legal proceedings will have to be issued. Following this, the claim will run on a timetable set down by the Court. Nevertheless, your clinical negligence case is still unlikely to end up in a Trial, with you having to give evidence. Those few clinical negligence cases that do end up in Court tend to be either those that are very complicated (on which the opposing sides cannot agree), or those that have a very high value (so both sides have an interest in fighting them all the way).