What is Medical Negligence?
Medical staff have a duty of care. Medical negligence happens when a medical staff member isn’t giving the standard of care that they need to. If for any reason you think that medical staff didn’t provide the care they should have, and then you ended up getting hurt or your health problems worsened then, this would be classed as medical negligence.
You might be unsure what counts as medical negligence, it can include:
- Delayed or incorrect diagnosis
- Failure to warn about the risks of a treatment or surgery
- Injuries caused during surgery
- Failing to get informed consent before carrying out a treatment or surgery
- Wrong prescription or dose of medication given
Options for Medical Negligence Claims
If you’ve suffered from medical negligence, there are two main options available to you:
- Making a Duty of Candour complaint against an NHS Trust – this should be done within 12 months. A member of the Patient Advice and Liaison Service (PALS) may also try to resolve any issues informally before taking your complaint further to an independent NHS Complaints Advocacy Service.
- Make a claim for medical negligence- if you go down this route the claim will need to be investigated by both parties and there will be an opportunity to try and resolve the claim without issuing proceedings. If the claim cannot be resolved then proceedings will need to be issued and the three year time limit will apply
For free legal advice, get in touch with our Medical Negligence Solicitors and ask if we can handle your claim on a No Win, No Fee basis.
When Does the Time Limit Start?
Usually, the time limit for claiming compensation for medical negligence will start from when the incident happened or when you first realised you had suffered from medical negligence. The latter is known as the ‘Date of Knowledge’ and the 3-year time limit will start from this date in these cases.
An example of this would be if you experienced misdiagnosis or the injury you went in for didn’t get treated correctly, then it might mean some time has passed before you came to realise that this was a case of medical negligence. This means sometimes you’re unaware for a number of weeks, months or even years that you may have a potential cause for complaint.
Are There Any Exceptions?
The exceptions to the three-year rule are discussed in more detail below:
Claiming on Behalf of Someone Who Has Died
When medical negligence proves to be fatal a claim can be made on behalf of the person who has died. This claim is made on the basis of the deceased’s right to make a claim and therefore as long as the time limit for the original claim has not expired then a claim can be made on behalf of the Estate of the deceased. The time limit to do this is three years from the date of their death or from the date their family became aware of medical negligence.
You might even know of the cause of your loved one’s death, but not the events that led up to it. Such a case could be one where they may have passed away due to an infection which you were aware of at the time, but it may not be until later that you understand that the infection was a result of poor care.
Claiming on Behalf of a Child
When a child has suffered medical negligence, the time limit to make a claim won’t start until they’re 18 years old, there will then be a 3-year Limitation Period for a claim to be brought forward.
This doesn’t mean a claim can’t be brought earlier. Parents can claim on behalf of their child at any time before their 18th birthday.
Adult without Mental Capacity
If someone who has suffered medical negligence is deemed to not have the mental capacity to bring a claim, the 3-year limit will be extended to start from the date they’re capable of understanding the implications of pursuing compensation.
Where a Claimant lacks capacity the claim can be brought forward by what's called a ‘Litigation Friend’. If the Claimant does not regain capacity then the time limit will not start and the Litigation Friend can deal with the proceedings on their behalf. If the Claimant does at some point regain capacity then the three year time limit will start to run and they will be able to deal with the proceedings in their own right."
Claiming Under the Human Rights Act
In some hospital negligence cases, someone seeking to make a claim for compensation might consider submitting a claim under the Human Rights Act 1998. In this scenario, legal proceedings will usually need to start within a year of the potential breach of the person’s human rights.
Can I Claim After Five Years?
If your medical negligence claim falls under one of the above exceptions, then yes, it may be possible for you to claim after five years. You may also be able to claim if the event happened 10 or more years ago if you weren’t aware of your injury or that there was negligence.
What is Mental Capacity?
‘Mental capacity’ is very nuanced and it’s something that can affect absolutely anyone, regardless of age. Keep in mind that capacity only refers to someone’s ability to understand information and make their own decisions. In terms of mental capacity to litigate this can be different to capacity to manage one’s own affairs and will often require expert evidence to consider if they lack capacity to litigate.
Here are some examples of what can cause mental incapacity:
- Dementia
- Mental health conditions
- Learning disabilities
- Conditions that cause confusion
- Unconsciousness
- Brain damage, such as a stroke
If healthcare professionals are not sure whether or not someone has mental capacity, they may carry out an assessment. An assessment may be determined during an investigation or while the patient is receiving medical treatment.
It’s important to understand that someone will not be deemed as not having capacity just because they’re making a decision that others don’t agree with. For example, if someone refuses to accept an organ transplant due to religious beliefs, they wouldn’t automatically be considered to lack capacity.
However, if someone has an eating disorder and they refuse treatment because they don’t believe that there’s anything wrong, they may then be deemed to lack capacity. This is because they may be considered to not fully understand their situation or the consequences of their actions.
Why Should I Make a Claim Early?
3 years can sound like a long time, but when taking into account the time taken obtaining expert medical reports and completing the relevant paperwork, it’s not a large amount of time to submit a claim.
Seeking legal advice early will give you peace of mind that deadlines that could put your compensation at risk won’t be missed. A legal expert can make sure you’re compensated for costs such as:
- Rehabilitation
- Care and assistance
- Lost earnings and income
- Special care aids and appliances
- Future medical treatment
Our Medical Negligence Solicitors can talk through your situation with you as part of a free claims assessment and let you know if you have an eligible claim.
Below we’ll discuss the other benefits of starting your medical negligence claim as early as you can:
Support
In some cases, we can secure an interim payment in advance of the final decision. If you start your claim early, you can ask for help from the Defendant to assist in any rehabilitation needs.
Finding Evidence
The longer you wait, the harder it will be to find some bits of evidence that you will rely on. For example, in cases where there are factual disputes it may be difficult to obtain accurate statements from witnesses as they may not recall precisely what happened
Is There a Time Limit for How Long a Claim Can Take?
No, once you have started the claim process, there is no time limit imposed for how long you have for a final decision to be made. As long as the initial claim started within the limitation period, you don’t have to worry about the length of your case. However, once proceedings have been issued a timetable for the claim will be set down by the Court but this can be extended by application to the Court where necessary.
How Long Will My Medical Negligence Case Take?
There is no length of time for any medical negligence case to be concluded. Every claim is unique, and a case can take anywhere between a few months to a few years. There are many factors that determine how long your case will take, including:
- The extent of your injuries
- If the other party will contest your claim
- How long it takes to gather evidence
- If your case goes to Court
There are many more factors that can turn a simple case into a more time-consuming one with nuances that we can look into. Our solicitors will be able to advise you on how long your case is likely to take, based on the details you provide. But it’s important to note that the overall length of your case can change at any time, as there are some factors that are out of anyone’s control.
How Simpson Millar Can Help
If you have suffered medical negligence, we can help to bring your case to justice to secure the compensation that you deserve.
Several of our Medical Negligence Solicitors are members of the Law Society’s Medical Negligence Panel and AvMA Solicitors Referral Panel. Our team are experienced in all aspects of these types of claims, and we have brought many claims like yours to justice.
Contact us today for a free claims assessment. Your dedicated solicitor will discuss your case in detail to determine how we can best help you. We’ll outline your legal options and suggest the best legal route for your claim.
If you’re ever unsure about anything relating to your claim, simply ask our team for more information. We’ll always communicate with you using plain English, so you don’t have to worry about over-complicated legal jargon.
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