If you have experienced medical negligence, it can be a highly stressful and confusing time. Not only will you be processing the immediate trauma of what happened to you, but you will also need to take into account the future impact it could have on your life and your family.

As such, those who have experienced medical negligence often have a lot of questions about what their legal rights are in this situation, and what the process will be for claiming compensation. If you've never been through this legal process before, this can seem daunting - which is why it's important to have a specialist legal team by your side, ready to answer any questions you might have.

Here, the medical negligence team at JMW have compiled answers to 14 of the most common questions that we receive about clinical negligence claims. Our aim is to help you understand what's involved in making successful medical negligence claims, and the role that a medical negligence solicitor can play in supporting you.

How will I know if what happened to me constitutes medical negligence?

Medical negligence is defined as poor treatment by a doctor, nurse, midwife, physiotherapist or other medical professional that directly causes an injury, or causes an existing condition to get worse. You may suspect that medical negligence occurred in your case; however, medical negligence is something that has to be proven, using specialist medical evidence.

This is not something that can be easily done by a layperson, so it is best to contact a specialist medical negligence solicitor with experience of working in this field. They will be able to give you an initial view on whether what happened to you meets the legal threshold for negligent treatment. If they think it does, they will then launch an investigation that involves analysis of your medical records and instructing independent experts, working within the relevant fields of healthcare, to provide reports. It is only through these expert opinions that we can know whether what happened amounted to medical negligence or not, and whether a legal case can proceed.  

What do I need to do before I bring a medical negligence claim?

Requesting your medical records can provide a head start, but is not essential, as your legal team can do this on your behalf. However, you should collate any hospital or GP letters you have, as these will help greatly in even the early stages of your claim.

It’s also helpful to prepare yourself for the commitment that a claim requires in terms of your time and attention. Your solicitor will do the hard work on your behalf, but they will require you to check and approve any documents that they prepare for you. While JMW’s solicitors will always work to progress your case as quickly and efficiently as possible, there can sometimes be delays caused by the defendant on the other side. This is nothing to worry about, and we will take appropriate steps to manage this; however, some patience will be needed.

Can medical negligence claims be made on someone else's behalf?

A claim always needs to proceed in the name of the injured person, and they will receive any compensation that is awarded. However, it is possible to support them with the day-to-day running of the case.

For anyone under 18, or who lacks mental capacity due to a brain injury, this is called being their litigation friend. This is an official role that is usually given to a family member or another close contact of the injured patient, who will have the authority to approve decisions and make choices on their behalf.

Authority can also be given to family members or friends to communicate on behalf of the injured person with their solicitor about their case. The injured person would need to sign a form of authority to say that this is okay. However, any decisions about their case - such as whether to accept a compensation settlement that has been offered - would have to be made by the injured party via their solicitor. 

If I make a medical negligence claim against the NHS, will it damage the health service?

This is something that many people are concerned about when they are considering bringing a case for medical negligence. However, it is important to understand that compensation for patients who have been harmed does not come from any budget used to provide health services.

Indemnity for acts of medical negligence is provided to all NHS healthcare services and staff via NHS Resolution, a separate entity that has been established specifically to deal with claims against the NHS. Compensation is paid from NHS Resolution’s funds, not those of any specific NHS trust.

The process of bringing a medical negligence case provides many opportunities to highlight and address issues with care that has been provided to you. As part of the case, the healthcare trusts involved will sometimes explain what actions they have taken to prevent the same mistakes from being repeated. For these reasons, bringing a medical negligence case can actually help the NHS to learn and improve.

What are the most common reasons why clinical negligence occurs?

There are numerous l types of medical negligence and they are broad and varied in nature, but the reasons for their occurrence generally fall into three categories:

• Staff not following policies and guidelines
• Failure to recognise the symptoms of a condition
• Incorrect interpretation of test, X-ray or scan results

While we are not always privy to information about staffing levels at the time of an incident of medical negligence, we expect the risk of something going wrong to be greater if services are under too much pressure.

What are the most common risks and challenges I might face when making a medical negligence claim?

There are very few risks involved in bringing a claim, but not every case is successful, and that is something you need to be aware of from the outset. It can be challenging to cope with delays caused by the other side, especially if you are in need of compensation to improve your quality of life, but this is something that we sometimes have to deal with.

It can also be challenging if the healthcare organisation responsible denies doing anything wrong, or refuses to accept that they caused you any harm. However, as long as our medical experts remain supportive of your case, your solicitor can continue to fight for you. There are also steps we can take to encourage the defendant to engage more with your case.

Will claiming for medical negligence compensation delay or affect my treatment?

No, it will not affect your ongoing treatment, because the legal side of medical care is dealt with by completely separate departments and people. You have the right to ask for your care to be moved to a different doctor or service provider if you have lost trust in your current one.

Can I claim for medical negligence if I signed a consent form?

Yes. Signing an informed consent form for a procedure or operation shows only that you acknowledge the risks and benefits of the procedure, working on the understanding that it will be carried out professionally and to the required standard. It does not prevent you from bringing a medical negligence case if your treatment was carried out negligently, or was delayed, and you suffered harm as a result.

Who can be held liable for negligent medical care?

All medical professionals - including doctors, nurses, midwives, physiotherapists, radiographers, or any other healthcare professionals working for the NHS or on a private basis, owe a legal duty of care to their patients. If they provide a poor standard of care that breaches that duty, then they, or the healthcare trust they work for, will be liable to have a medical negligence case brought against them. 

What factors affect how long it will take to make a medical negligence claim?

At the investigation stage, the timescale of a claim can be affected by the availability of the medical experts we need to provide reports to support the case. We strive to use leading experts to give your case the best possible chance of success; however, because these experts are in demand, their waiting lists can be long. In these cases, you can rest assured that, because our network is strong, we can often find other respected experts to avoid unnecessary delays.

Do I need to make a complaint to the NHS to claim compensation?

An official complaint is not always necessary, but can be useful. Setting out the problems with your care in a complaint can help your solicitor to understand what went wrong, and consider other issues that you may have missed. The response from the healthcare organisation concerned can also provide vital clues. However, even if the organisation does not accept in their complaint response that things should have been done differently, it is still possible to bring a case for medical negligence. 

Can I report a healthcare professional for medical negligence?

If you are concerned that a medical professional has made mistakes in your care and that there is a risk they have harmed, or will harm, other patients, then there are regulatory bodies that you can report them to for investigation. 

The General Medical Council (GMC) regulates doctors and the Nursing and Midwifery Council (NMC) does the same for nurses and midwives. Healthcare organisations such as hospitals can also be reported to the Care Quality Commission (CQC).

Will I need to attend a trial?

It is very unlikely that you will have to attend a court trial in your case, as only a tiny percentage of claims ever reach this stage. Going to trial is a last resort if all other attempts to negotiate and settle the case have failed. In the rare event that a trial is needed, we provide in-depth support, assistance and representation to clients to guide them through this process.

Is there anything I can do to reduce the chance of experiencing medical negligence?

Acts of medical negligence are not within your control, and you should not feel any responsibility to prevent them. It is not possible to choose when you require medical treatment, and the system should be safe no matter where or when this need arises.

If you have more questions about medical negligence and the claims process, you can also take a look at the following guides from JMW:

• What is medical negligence?
• What is the medical negligence claims process?
• What are the time limits for making a medical negligence claim?

To speak to our medical negligence solicitors to ask a question or make a claim, give us a call on 0345 872 6666 today, or complete our online enquiry form to arrange for us to call you back at a more convenient time.