If you think that you might have a claim it is always best to pick up the phone and talk to us. We will listen carefully to what you have to say and will advise you on the best course of action to take. You will not be under any obligation to us and your initial discussion with us will be completely free.
It is important to be aware, that, in order for your lawyer or legal advisor to proceed with a claim for clinical negligence on your behalf, they must be able to establish two things:
- Sub-standard care – care that does not meet the standard of a reasonably competent practitioner
- That the failure to give proper care has caused extra health problems for the patient i.e. the outcome is worse for the patient than it might otherwise have been with reasonably competent care
Reasons why a claim may not be possible:
- If no harm has arisen from the breach of duty of care then there is no claim. A clear breach of duty of care on its own is not enough for your lawyer to be able to proceed with a claim.
- Action cannot be taken for what might have happened. Your lawyer can only take action for what did happen.
- There are risks associated with every medical procedure. These risks should always be explained to you before a medical procedure is carried out. Your lawyer must consider whether the harm complained of was a risk of the procedure or whether it arose out of substandard care. If it was a risk of the procedure then there is unlikely to be a claim.
- The potential value of the claim may have an impact on whether you should bring a claim. Does the cost of pursuing your claim significantly outweigh the potential compensation? If this is the case it may not be sensible to proceed with your claim. This “test” is called proportionality.
Time Limits: If you are to proceed with a claim for clinical negligence then you must start your claim within three years of when the medical accident happened or when you first realised that you had been injured as a result of a medical procedure or failure to provide adequate care.
This three year limit does not apply to children until their 18th birthday, so in the case of a child they have until they are 21 to start a claim.
Can I claim on behalf of someone else? If you are over 18 years of age and have mental capacity then you have to make the claim yourself. However it is possible for you to ask your solicitor to discuss your case with and take instructions from a trusted friend or relative if that is what you would prefer.
If you lack mental capacity, perhaps because you have sustained a severe brain injury, then a litigation friend can be appointed to represent you. A litigation friend can also be appointed to represent a child under the age of 18. The litigation friend is usually appointed through a relative or close friend approaching a solicitor.
For example, a mother may visit her solicitor to discuss a possible clinical negligence case on behalf of her son or daughter. If the mother and the solicitor agree that the mother will act as the Litigation friend the case can proceed on that basis. A litigation friend can also be appointed by the Court.
To help you understand whether a claim may be possible and to explain the steps in the process the Clinical Negligence team at TSP have put together a comprehensive guide to Medical Negligence claims.
In the guide you will find detailed information about the different types of Medical Negligence claim and what to do if you believe you or a family member have been a victim of Medical Negligence. The guide also provides useful information about the steps in the Claim Process and the different funding options available.