To pursue a claim for clinical negligence successfully there are two elements that you must prove. Firstly you must show that there was fault, i.e. the treatment you received was performed below all acceptable standards and in a way that would not be supported by a reasonable body of opinion within that medical speciality. Secondly, if you can prove fault you will then need to prove causation, i.e. that the negligent treatment directly caused or significantly contributed to the injury.
Pursuing a formal complaint through the NHS complaints procedure is often a useful starting point before you contact a solicitor. This will allow you to obtain further information about your treatment and will assist your solicitor when they assess the case. When you first contact your solicitor they will need to assess the strength of the case.
You should keep a record of everything that is relevant to the treatment you have received, including copies of any correspondence you have. You should also keep a record of any expenses you have incurred and any losses of earnings.
When assessing a claim, the solicitor will consider how the claim can be funded. The options are:
* Legal Aid - if you have very low income or are not working at present, you may be eligible for Legal Aid. Your income will be assessed and the solicitor will have to show the Legal Services Commission who provide Legal Aid that the case has reasonable prospects of succeeding. To justify being granted Legal Aid, your solicitor must also be able to show that the claim meets the cost benefit tests, i.e. that the damages recovered will be more than the costs of pursuing the action;
* Conditional Fee Agreements - this is known as the 'no win no fee' type of agreement. We use these very frequently. If you win the claim, your solicitor will recover costs from the defendant. If you do not win your claim, you will not be liable for any of the costs;
* Legal Expenses Insurance - some household insurance policies provide cover for legal expenses, which sometimes covers clinical negligence claims;
* Private funding - this is where you pay for the case yourself;
* Trade union help - trade unions may provide assistance with the costs of a claim.
Any claim for clinical negligence must be commenced within three years of the date of the negligent treatment complained of, or three years from the date you realised that the treatment had been incorrectly carried out. This is called the limitation period. In the case of a child, limitation will not start until the child's eighteenth birthday, meaning they must commence a claim before they reach the age of twenty-one. If the claim involves a person who does not have mental capacity to bring a claim, known legally as a patient, limitation will not start until they recover from their incapacity.
In both the case of a child and a patient, a claim can be pursued by someone else acting on their behalf. This role is known as being a Litigation Friend and may be fulfilled by a parent, in the case of a child, or a spouse or partner in the case of a patient.
