We know that seeking legal support and making a claim can be a daunting experience. Our experienced team is always on hand to talk you through the process and answer any questions you may have. As many of our clients have similar queries and concerns, we’ve provided answers to some of the most commonly asked questions below:
It is very important for clients to receive an apology if they suffered harm as a result of the care they received. The NHS is becoming more proactive in saying sorry, and we can help you attempt to secure such an apology. This can be obtained by pursuing the complaints procedure or during the course of bringing a claim. You must bear in mind that "saying sorry" is not a legal admission, and does not mean that a claim for compensation will be successful. There are specific legal tests that must be satisfied to be successful in a claim. There is also no guarantee that the practitioner concerned or their legal team will agree that an apology is appropriate. We will however do all we can to secure an apology on your behalf.
A doctor should never treat you differently if a claim is made against them. A doctor's duty is to provide – at all times and to the best of their ability – a competent standard of care in a professional and courteous manner. Should they do otherwise, they risk their professional reputation and may be referred to the General Medical Council who will assess their fitness to practice and may take further action if necessary.
It may be reasonable however for a doctor to request that one of their colleagues treats you in order to avoid further upset if you have made a claim against them – and you can do likewise, particularly if you have lost trust in their treatment of you.
In practice the majority of clinicians accept that individuals have the right to make claims, and are able to continue to act in accordance with the professionalism expected of them.
In order to bring a successful clinical negligence or personal injury claim, you require expert evidence to support your case. If you do not have supportive expert evidence a compensation claim cannot proceed.
We choose the experts who advise in your case very carefully from a database of approved and ranked experts. We constantly keep this database up to date following the most recent instructions and by discussing experts' performances with others in the firm. We discuss our choice of expert and their specialism with you.
When the expert is instructed, we provide them with a full copy of all of your medical records which have been sorted and reviewed by us. The expert will also be provided with a copy of your witness statement to explain your side of the story. The expert will then carefully review your case and provide a report.
Experts' reports can be unsupportive of your case for a number of reasons, which may turn on medical evidence alone or the contents of the medical records and your own evidence.
We will ask you to carefully review any expert's report obtained in relation to your claim and let us have your comments. Depending on the reasons why the report is unsupportive and your comments, it may be necessary to either ask the expert some further questions to address the queries you have or to hold a conference with the expert (and any other experts instructed in your case) and a barrister to explore the reasons for the expert's view.
Sometimes, clients find that, once their treatment has been comprehensively reviewed by an expert, even if the expert is unsupportive, they understand the reasons for this and are able to accept that their potential claim has been fully investigated but that a court would be unlikely to find in their favour. This alone can help to provide some closure.
Sometimes clients are unsatisfied with the expert's performance and feel that the expert has not fully considered all of the aspects of their treatment or they simply want a second opinion. Depending on how the case is funded, it may be possible to obtain funding for this. More often than not though, it will be necessary for the client to fund the second opinion themselves. If the claim is ultimately successful, the cost of this can be recovered from the Defendant. If the claim is unsuccessful, the cost cannot be recovered.
If the second report is supportive, the claim may subsequently proceed on the basis of the second expert's view and can still ultimately be successful.
It may be you are worried that your claim will not reach a conclusion before your death, perhaps because you have an illness that has shortened your life expectancy. If you die whilst still pursuing your claim, the right to continue with the claim passes to your estate, which means your personal representative will be able to bring the claim in your place. If you leave a Will this will usually be your executor, and if you don't leave a Will it will usually be the family member who administers your estate.
There is a three year time limit within which to bring a clinical negligence claim (i.e. to issue a claim form at court). If you die within the three year time limit and no claim form has been formally presented to court, the clock begins to run again and your personal representative then has a further three years in which to bring the claim. We would always recommend seeking legal advice as soon as possible as it can take a long time to investigate a potential claim.
If your claim had included sums of money to compensate you for future financial losses such as your future loss of earnings or the costs of personal care, these sums won't be recoverable if you die before the claim concludes. However, if you have a partner, children or other close relative who is financially dependent on you or physically dependent on the care you provide to them, they may be able to recover compensation for their 'loss of dependency' if you die as a result of the negligence.
You cannot get a doctor struck off by bringing a medical negligence claim, or force any disciplinary action to be taken. Only the General Medical Council (GMC) can do this in very serious cases, although their investigation is sometimes triggered by a complaint from a patient. Any complaint made to the GMC will not stop you from instructing us to investigate a claim as this can be done at the same time. When a medical negligence claim is pursued, it usually results in an internal investigation into the actions of that doctor/hospital being undertaken and can provide an opportunity for lessons to be learnt. Depending on the result it can lead to doctors being retrained, or internal procedures being improved. Please visit the GMC website for more information.
If you think that something in your medical records is wrong, the Patients Association recommends that you write to the GP or hospital saying what is wrong, and providing any evidence you have which supports your view. Medical records cannot usually be changed, but a note can be added explaining why they are incorrect. It is important that your records are accurate because the treatment you are given may depend on them.
Medical negligence claims usually involve events which took place some time ago, so that clinicians cannot be expected to remember exactly what happened. For this reason both the you and the hospital or clinician will rely heavily on the medical records, which are supposed to be an ongoing summary of the patient's condition or the treatment provided. The records may be unreliable for many reasons: perhaps because they were done in a rush and fail to include everything which is relevant, or because the clinician omitted to make a note and only realised that omission later, when their recollection was poor.
Very occasionally clinicians include things which they forgot to do at the time but claim to have done to avoid getting into trouble and sometimes records are destroyed or tampered with in order to show that errors did not happen. Falsifying medical records is a crime if it is done with the intention to mislead, and clinicians who are found to have falsified records face being censured or struck off the register. It is not something which a clinician would do lightly.