Contact Julie Marsh in the Medical Negligence team by calling 0118 952 7219 or emailing jmarsh@boyesturner.com. Visit the Boyes Turner website at boyesturnerclaims.com.
Note: The laws in Scotland, Northern Ireland, and Wales are different. Please refer to our separate guides on legal action in Scotland, Northern Ireland, and Wales. If you need legal advice about making a clinical negligence claim, you can find a wide selection of accredited solicitors on Avma’s Specialist Clinical Negligence Panel on our Find a Solicitor database.
If you have suffered an injury due to medical treatment, this may be referred to as a ‘medical accident’, ‘adverse incident’, or ‘patient safety incident’.
This does not mean that the treatment was necessarily ‘negligent’; whilst it is possible that your injury could have been avoided by better quality care or safety measures, that on its own may not be enough to satisfy the legal test for negligence. You will only be able to bring a legal claim in medical negligence if you can show that the treatment you received was negligent.
‘Negligence’ has a very specific meaning in law — there are certain tests that must be applied and satisfied to assess whether the treatment provided might be considered negligent in the legal sense. More information is provided below. In broad terms, to succeed in a legal claim, you must show that:
Invariably, you will need independent advice from an appropriate medical expert to understand if the treatment you received was negligent, and whether you have suffered injury because of that negligence as opposed to some other reason, for example a progression of a pre-existing condition.
This is a very personal decision and there is no right or wrong answer. It is about doing what is right for you. Even if you have been injured as result of medical negligence, you may not want to bring a claim. Litigation is usually very time consuming and stressful; it is not for everyone and you are not obliged to take legal action.
We do not recommend you bring a claim with a view to having a ‘day in court’ to confront those involved in the medical accident. Neither will litigation provide you access to treatment you want or believe you need, and it will not speed up your access to treatment.
People usually take legal action if they want or need compensation, also known as damages. If a serious injury occurs because of medical negligence, and that injury prevents you working and living your usual lifestyle and/or supporting or contributing towards your family, then you may feel you have no choice but to seek compensation.
Some people feel angry that the negligence occurred at all and bring proceedings to ensure accountability. Sometimes, people feel driven to litigation to find out the truth about their treatment or make sure lessons are learned. This can often happen when someone believes that the healthcare provider is deliberately not giving them answers to their questions.
It is perfectly understandable for you to want to find answers to questions you have about your care, an apology, or both. There are alternatives to litigation which may provide answers, or at least additional information, for example:
If you do choose to bring legal action, you will be able to identify whether the care you received was of an acceptable standard.
If your case is successful, you will be entitled to an award of damages. The amount you receive will depend on several factors, including:
For more information on compensation (damages), please read our guide on what compensation you can claim for clinical negligence.
Avma recommends that you instruct a solicitor to help you investigate and bring a claim. You should only use a solicitor who is accredited in clinical negligence work — look for an Avma accredited solicitor. Our accredited solicitors are listed on our Find a Solicitor database.
Please read our guide on things to consider when choosing a solicitor.
Clinical negligence claims are often complex cases. It can be very difficult to know if you have grounds to bring a legal claim, as these cases almost always require investigation. This will include obtaining copies of medical records and an independent expert opinion.
To succeed in a clinical negligence claim, there are three key considerations:
This is not intended to be an exhaustive list, but the sort of care that can result in a successful claim for clinical negligence can include:
Example 1: Patient X attends her GP surgery and is prescribed the incorrect medication for her condition. The pharmacist identifies that the medication is incorrect and Patient X does not take it. The GP owed Patient X a duty of care, which they breached, but a legal case would fail as Patient X did not take the medication and therefore did not suffer any injury or damage.
Example 2: Patient Y attends the emergency department after a fall in which she injured her wrist. She is examined and an X-ray ordered. She is reassured that all is fine and is sent home. The injury does not improve and Patient Y returns after three months. She is told that, in fact, she suffered a fracture, the X-ray was misreported, the fracture should’ve been immobilised with a plaster cast, and it is now displaced and requires surgery. The hospital owed Patient Y a duty of care. An expert confirms the fracture should have been detected on initial presentation and that as a result of the failure to do so, Patient Y now requires surgery and a longer recovery. A legal case would likely succeed.
The law around advice and informed consent to treatment has evolved considerably in recent years, recognising patient autonomy and their right to expect an active role in decision-making.
The courts have confirmed that patients must be given necessary information to enable them to make an informed choice about their healthcare, which includes not only warnings about the material risks of any proposed treatment (from the perspective of that individual patient), but also the alternatives (including doing nothing).
Medical experts (or ‘medico-legal experts’) are in many ways the most important part of any legal claim in medical negligence. It is very likely that you will need more than one medical expert: one to give their opinion on the standard of care and whether the treatment provided was negligent (liability expert) and another one to give their opinion on whether your injuries are the result of negligent treatment (the causation expert).
You may need more than one expert on causation. For example, if you are claiming for mental harm, you will need an expert psychiatrist as well as another causation expert to explain what physical injury you have suffered because of the negligence.
It is very important that the medical expert is independent — this means that he or she does not know the treating clinician or have any affiliation to the healthcare providers in question. This ensures that the expert’s opinion is impartial, free of bias, and given honestly and freely.
A solicitor instructing a medical expert should make reasonable enquiry at the outset to ensure that no actual or potential conflict can arise by instructing them. For example, if the expert works with the doctor you are alleging negligence against, a conflict is more likely to arise. If there is a possible or actual conflict, it is important that the solicitor is aware of this at the outset and considers whether it is appropriate to instruct that particular expert.
If there is a potential conflict of interest, it does not mean the solicitor cannot use that expert, but they should make you aware of this fact. There are some areas of medicine where there are very few independent medical experts practising and it may be necessary to instruct one even though an apparent conflict exists. In this case, the solicitor will be expected to manage the conflict and may discuss it with the barrister even before they instruct the expert.
It is also crucially important that the medical expert who is invited to give their opinion is of the same medical discipline as the medical professional alleged to have been negligent.
As you might imagine, standards are continuously evolving, especially as the list of available medical treatments increase along with improved medical knowledge. Sometimes, practises are embedded in leading teaching hospitals long before they reach regional hospitals where there is often a period of catch-up. This is one reason an expert for the patient may have a different opinion from an expert who is instructed by the healthcare provider.
In practice, it is often the case that the independent experts will eventually find some middle ground to agree on and this makes it more likely the case will settle without the need to go to trial. However, where the experts continue to hold very different views, the case is more likely to end up in court where the judge, having heard the respective expert’s views, will decide which opinion they prefer and decide (give judgment) based on that.
If you do decide to bring a legal claim, you will be known as the Claimant and the healthcare provider you are suing will be known as the Defendant. If your claim is against more than one defendant — for example, you might be suing your GP and a hospital trust — then both the name of the GP (or the practice) and the hospital’s name will appear on the court documents.
The court documents include the claim form, the particulars of claim (pleadings), and the defence if and when that is filed with the court.
Please read our guide on time limits for making a claim for compensation.
Generally speaking, you must commence your claim within three years of the date the incident occurred, or when you first realised you had suffered harm.
The time limits may seem straightforward, and they often are, but problems can arise especially if you did not realise that you had suffered an injury until some time after it occurred.
There are special rules for calculating when the three-year time period runs in the case of children and people experiencing mental capacity problems. Please read the leaflet on time limits carefully.
If your claim is going to rely on the European Convention on Human Rights (ECHR), you have 12 months to bring your claim.
The time limits are important and it is unlikely that you will be able to bring a claim if you issue proceedings outside of the time limits.
It is advisable to take specialist legal advice as soon as possible and, in any event, preferably before the final year of the limitation period starts. This is because solicitors often have a lot of investigatory work to do, such as obtaining independent medical expert evidence prior to serving any letter of claim/commencing legal proceedings. It can take more than 12 months to get this necessary information together. Solicitors are increasingly reluctant to take cases if they think they may not be able to complete their investigations prior to expiry of the three-year limitation period.
For details, please see our guides on understanding legal costs below.
If there has been negligence and you have suffered an injury, but this is minor and the amount of compensation to be awarded is expected to be very low, the cost of bringing proceedings is likely to far outweigh the amount to be recovered (‘de minimis’). Lawyers may advise that in these circumstances the cost of pursuing the claim is disproportionate to the compensation that would be achieved and that litigation cannot therefore be justified.
No. In fact, clinical negligence claims very rarely end up with a trial in court. Many cases are settled after all the investigations are completed and before legal proceedings are issued.
Where proceedings are issued, providing the case has good supportive medical evidence, the majority of cases settle without the need for a trial. The courts encourage both sides to settle the matter quickly where possible and to avoid incurring extra costs.
Even though most cases settle long before trial, you should be prepared for the matter to go to trial so that a judge, having heard all the evidence, can decide whether the treatment was negligent or not.
No amount of money can change what has happened. Financial compensation will, however, be awarded to put you back in the position you would have been in if the negligence had never occurred.
For details, read our guide on what compensation you might be able to claim.
Please see our guide on compensation where someone has died.
The decision to take legal action should not be taken lightly. It can be costly, lengthy, very stressful, and there are no guarantees of success. You will be required to go over what happened to you many times which you may find traumatic and upsetting.
The process is complicated and you may find it helpful to discuss your options with one of Avma’s specially trained helpline advisors. The helpline advice service is provided free of charge (please check your provider’s rates).