Insights

Clinical Negligence Procedure 

If you or a loved one have suffered injury due to the negligence of a medical practitioner, you may be entitled to compensation for your pain, suffering and financial loss. You may be unsure about where to start. 

WHY SHOULD YOU INSTRUCT MSR? 

The first step in the medical negligence claim process is to consult a specialist medical negligence solicitor at MSR.  

MSR have proven expertise in medical negligence cases. These claims can be highly complex and require a thorough understanding of both medical and legal issues. MSR will have the experience and understanding to ensure that your case is handled professionally and efficiently. 

Once you have instructed MSR, we will arrange an initial consultation with you. This allows you to explain a summary of the circumstances and allows us to assess the merits of your claim and determine if it is worth pursuing. It also allows us to explain the steps involved in the process and provide you with an estimate on the likely compensation. 

HOW TO FUND YOUR CLAIM? 

There are a few options available for funding your case. MSR will help you decide which is best for you during your initial consultation. 

  • No win, no fee agreements – Also known as a conditional fee agreement (CFA). MSR take our fees as a percentage of the compensation you receive. This means you will not have to pay any up-front legal fees. Our fee will be 25% of the compensation you are awarded. This is deducted at the end of a successful claim. If you don’t win your no win no fee claim, you don’t pay us any legal fees.   

Depending on the complexity of the claim, you may need an insurance policy to cover the cost of disbursements such as the medical report. Again, you will not have to pay for this up-front and the cost will be deducted from your compensation award. 

  • Before the event legal expenses insurance – Some insurance policies, such as home insurance or motor insurance may include legal expenses cover that can be used for funding medical negligence claims. You should review your existing insurance policies to determine if they provide legal expenses cover, and if your claim is eligible under the terms of the policy. 
  • Privately funded claim – You can choose to pay us by our hourly rate. This can be expensive but if your claim is successful, your legal costs can be claimed back from the Defendant.  

HOW DO WE PROVE NEGLIGENCE? 

Negligence is the breach of a legal duty of care owed to one person by another which results in damage being caused to that person. To succeed in a claim for negligence, the claimant needs to prove four things: 

  1. The practitioner owed a duty to take care of the claimant; 
  2. There was a breach of that duty to take care; 
  3. That the breach of duty has caused harm to the claimant; and 
  4. Damage or other losses have resulted from that harm. 

WHAT IS A DUTY OF CARE? 

To establish a duty of care, you must demonstrate that there was a professional relationship between the healthcare practitioner and the patient, which created a responsibility to act in the best interests of the patient. 

It is fairly easy to prove that the doctor or medical team who are responsible for treating a patient owe the patient a duty to take care of them. This also applies to other healthcare practitioners such as nurses and therapists. 

WHAT IS A BREACH OF DUTY? 

It is necessary to show that the healthcare practitioner fell below the standard expected of a reasonably competent practitioner in that particular area of medical care. The test is whether they failed to meet the standard of a reasonable practitioner also skilled in that area.  

The duty on the practitioner to act in a way that is reasonable applies whether the matter concerns treatment, diagnosis or advice. 

WHAT IS CAUSATION?  

In addition to proving that the practitioner has failed to meet the relevant standard of care, it must also be proved that this failure either directly caused the injuries alleged or materially contributed to them. This part of the claim is very often difficult to prove. It may be easy to prove that the practitioner did something wrong but this does not necessarily mean that it caused the patient’s injuries. 

You must show that the injury or illness would not have occurred – or would have been less severe – had the practitioner not breached their duty of care.  

It may sometimes be the case that the treating medical practitioner will admit that there has been a negligent act. However, this does not automatically mean that the practitioner is liable to pay damages. In order to establish liability, it must be shown that the breach of duty caused the damage. 

WHAT IS DAMAGE? 

A claimant who is able to prove breach of duty and causation then needs to establish that they have suffered damage for which a claim can be made.   

Damage can be physical or psychiatric injury, as well as financial loss such as loss of earnings and future treatment.  

The court will try to put the claimant into the position they would have been in if the negligent act had not occurred. 

However, not all losses are recoverable. A court will only award damages for losses which are reasonably foreseeable and not too remote.   

Examples of what can be claimed include: 

  • Pain and suffering, and loss of amenity 
  • Medical expenses such as the cost of care and treatment 
  • Loss of earnings

HOW DO WE INVESTIGATE YOUR CASE? 

One of the first things MSR will do is request copies of medical records and GP notes from the GPs and hospitals where you received treatment to assess the details of your case. MSR will review them to identify any evidence of negligence, such as missed diagnoses, inappropriate treatments, or failure to obtain informed consent. MSR will also identify who the defendants are, as there may be more than one.  

Following this review, if your claim is likely to be successful then MSR will notify the defendant of the nature of your claim and invite them to make an early admission. 

HOW DO WE OBTAIN EVIDENCE? 

If MSR feel that your medical records are supportive of a claim, we’ll instruct a specialist medical expert to provide an opinion regarding any potential substandard treatment and whether that substandard treatment resulted in you suffering an injury. 

To help establish that there was a breach of duty and that the breach caused the injuries, the medical expert will examine you and prepare a report. Experts can only comment on areas within their direct specialism. They may also provide an opinion on the extent of your injuries or the long-term consequences of the alleged negligence, which can help in valuing your claim. 

It is important to note that the expert’s opinion is not guaranteed to be in your favour, and it is possible that they may find that the medical professionals did not breach their duty of care, or that the breach did not cause you harm. In such cases, MSR will discuss the expert’s findings with you and advise you on whether the medical negligence claim can still proceed. 

HOW DO WE VALUE YOUR CLAIM? 

Once MSR have obtained a supportive expert report on issues of breach of duty and causation MSR can start to look at the value of your claim.  

When MSR value your claim, we look at two areas of loss; general damages and special damages.  

  • General damages – Damages cover pain, suffering and loss of amenity. This includes both physical and psychological harm caused. 
  • Special damages: Special damages cover any financial losses or expenses incurred as a result of the negligent treatment, including the cost of medical treatment, rehabilitation and care, as well as loss of earnings, and treatment-related travel expenses.

The value of your claim will depend on various factors, including: 

  • The severity and nature of your injuries 
  • The impact of the negligence on your quality of life 
  • Your age and life expectancy 
  • Your financial losses, both past and future 

MSR will look at past similar cases and use the Judicial College Guidelines to estimate the value of your claim 

Once MSR has gathered the necessary medical evidence, assessed the factors influencing your claim’s value, and reviewed the guidelines and case law, we will provide you with an estimated compensation range. This estimate can be used as a starting point in negotiations with the defendant. 

HOW DO WE PRESENT THE CASE TO THE DEFENDANT? 

Once MSR have obtained the medical evidence and valued your claim, we will present your case to the defendant. MSR will send the defendant a formal letter of claim, which will include the allegations of negligence, the harm you have suffered, the supporting medical evidence, and the compensation you are seeking. 

The defendant must acknowledge receipt of the letter of claim within 14 days, confirming that they have received it and will be investigating the allegations. The defendant will then have 4 months to investigate the claim which may involve obtaining their own medical evidence. They must confirm if liability is admitted, or denied in their letter of response which must be served within those 4 months.  

HOW DOES THE DEFENDANT RESPOND?  

The eventual letter of response will outline the defendant’s position on the allegations. 

  1. If the defendant admits liability, negotiations can begin to settle the claim. MSR will work with the defendant’s legal representative to agree a suitable compensation amount based on the evidence provided. 
  2. If the defendant denies liability, MSR will need to review the response and the reasons for the denial. Based on this information, MSR will advise you on the best course of action, which may include gathering further evidence, seeking additional expert opinions, preparing for court proceedings, or discontinuing the claim. 
  3. If the defendant makes a settlement offer, MSR will discuss the offer with you and advise you on whether it is reasonable based on the evidence and the value of your claim. If the offer is unsuitable, MSR will negotiate with the defendant to reach a more suitable settlement, or proceed to court if negotiations are unsuccessful. 

DO WE NEED TO START COURT PROCEEDINGS? 

If the defendant denies liability or if negotiations fail to reach a satisfactory settlement, it may be necessary to proceed to court.  

MSR will explain the court process throughout and will advise you on your options and keep you informed of any developments in your case.  

There are many stages to court proceedings, such as disclosure of evidence, exchange of witness evidence, and exchange of expert reports. MSR are experienced in conducting court proceedings and will keep you informed throughout the whole process.   

It is important to note however that most medical negligence claims are resolved without the need for a trial. 

If your case goes to trial, MSR will instruct an experienced barrister to represent you in court and present your case to the judge.  

After hearing both sides, the judge will make a decision on the case, determining whether the defendant is liable for the alleged negligent treatment and, if so, the amount of compensation to be awarded. 

If either party disagrees with the judgement, they may have the right to appeal the decision to a higher court, subject to certain criteria and time limits. 

It is essential to remember that going to court can be a lengthy and complex process, and the outcome is not guaranteed. However, by working closely with MSR, you can increase the likelihood of a successful outcome and secure the compensation you deserve. 

HOW LONG WILL YOUR CLAIM TAKE TO RESOLVE? 

The length of time it will take to fully resolved your claim will vary significantly depending on the specific details of the case. These include: 

  • The complexity of the case – There may be complex medical issues, or the necessity of multiple medical reports may require more time to obtain.  
  • Gathering evidence – gathering medical records, expert opinions and financial evidence can take time, especially if you have to rely on third parties to provide this information. 
  • The conduct of the defendant – the defendant may deny liability and may not be willing to engage in negotiations. If they dispute liability or the proposed compensation amount, the process may take longer and may need to be taken to court. 
  • The complexity of the court proceedings – if a full trial is necessary, the duration of the claim may be longer due to the court’s schedule. 

IS THERE A TIME LIMIT TO MAKE A CLAIM

There is a general time limit of 3 years from the date of the alleged negligence or the date you became aware of the negligence to bring your claim.

If you do not issue court proceedings by 3 years your claim will be time-barred and ineligible for compensation. There are a few exceptions to this rule, such as for cases involving children, where the three-year limit begins when the child turns 18, or individuals who lack mental capacity, who do not have any legal time limits. 

It is therefore essential to seek legal advice from MSR as soon as possible. This will help ensure that your claim is investigated and pursued within the required time limits, increasing the likelihood of a successful outcome as quickly as possible. 

*This article is not legal advice but provides a general overview. The specific details of your case will determine the best course of action.

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Cycling Accident Claims