Making a medical negligence claim: What happens before you begin legal proceedings?
What is the medical negligence process before commencing legal action?
Many people are surprised to learn that their medical negligence claim is unlikely to ever make it to court. Most cases are settled before out of court following negotiations between the parties. Even if you get to the stage where you need to issue court proceedings, it is still likely that your case will never heard in a court room.
Nevertheless making a medical negligence claim, whether it will go to court or not, can be daunting, especially if you have not previously dealt with a legal case. To ensure a smooth experience, our team is dedicated to explaining the medical negligence process in clear, jargon-free language, keeping you informed about every step along the way, and advising you of your options as your claim progresses.
In this article we will break down the medical negligence process prior to issuing court proceedings. Check out our related article on the process after proceedings have been issued.
So, starting at the very beginning …
To bring a successful medical negligence claim, the following must be proved:
- That the healthcare professional breached their duty of care to you; and
- This breach directly caused (or significantly contributed) to an injury or illness.
You also need to ensure that you are within the 3-year deadline for adults to make a medical negligence claim. This 3-year deadline runs from the date of the incident, or the date you became aware of the negligent treatment. There are exceptions to this 3-year rule for cases involving children or individuals who lack capacity. It is therefore important to get legal advice as soon as possible to avoid falling outside of the 3-year window.
If you get in touch with our friendly team, we will be happy to review your case and advise whether you have grounds to make a medical negligence claim.
Once it has been established that your claim has merit then this is our step-by-step guide to how the case will proceed:
Step 1: Appointing a medical negligence solicitor
This is a crucial stage, as in most cases you will need a specialist solicitor to guide you through the medical negligence process. If you have already spoken to our team and had a case review, then we hope that you will decide to appoint us to bring the claim on your behalf. The solicitor should be an expert in medical negligence law. Our team includes lawyers who are recommended by the country’s independent legal guides and a member of the prestigious AvMA lawyers panel.
Step 2: Deciding how to fund your claim
Once you have instructed a solicitor you are happy with, the next step will be a discussion about how your claim will be funded. It is important to ensure that you are aware of the financial implications of making a claim and to decide on the most suitable funding option for you. Most of our clients choose to take advantage of our popular, fully funded No Win, No Fee scheme.
Step 3: Obtaining your medical records
Medical records play a vital role in a medical negligence claim. It is important to obtain these from all relevant healthcare professionals involved in youe case. Don’t worry if this sounds difficult, your solicitor will do this for you.
Step 4: Obtaining expert evidence
Your solicitor will also obtain expert witness evidence to comment on whether medical standards have been breached and the consequences of that breach.
Step 5: Valuating the Claim
Once all the evidence has been received, your solicitor will value your claim by considering the harm you have suffered as a result of the negligence. Compensation is broken down into the following categories:
- ‘General Damages’: Compensating you for your ‘pain and suffering’.
- ‘Special Damages’: Compensating you for your financial losses, both now and in the future.
Step 6: Letter of Claim and Letter of Response
The next step will be to present your claim to the defendant in a ‘Letter of Claim’. This is a formal document that outlines all the details of the claim, including the allegations of negligence, the harm you have suffered, and the supporting evidence relied upon. Once received, the defendant will have 4 months to investigate and provide a ‘Letter of Response.’
Step 7: Negotiating a settlement
If the defendant admits to being at fault, either completely or partly, negotiations can commence to settle the medical negligence claim. Your solicitor will work with the defendant’s legal representative to reach an agreement on a fair amount of compensation based on the evidence provided.
If the defendant denies liability, your solicitor will need to review their response and any additional evidence they have provided. Based on this information, your solicitor will advise you on the best course of action, which may involve gathering further evidence, seeking additional expert evidence, and getting ready for court proceedings.
How we can help with your medical accident claim
We are always happy to have a chat about any medical accident claim on an informal basis and set out your options.