If a medical professional caused your injuries, you might be entitled to compensation to cover your losses, including lost earnings and rehabilitation costs.
This guide answers the most common questions our clients ask. If you want to discuss your case, get in touch for a free, confidential chat. We'll provide initial advice and explain the claims process in detail. It's crucial to seek legal advice from a specialist solicitor early on to help you navigate the claims process and secure the compensation you deserve.
What should I do if I have suffered from medical negligence?
The first step is to make a formal complaint to the NHS or the private hospital where you received treatment. You can ask for a copy of their complaints procedure or find it online. They are required to investigate and respond to your complaint. Their report may help explain what happened and provide answers to your questions.
If you are not satisfied with the NHS response, you can complain to the Scottish Public Service Ombudsman (SPSO). You must submit your complaint to the SPSO within one year of receiving the NHS response.
We would recommend you keep a note of what has happened to you to assist with your recollection of important events at a later date. We would also recommend you record what assistance you required following your injury, as this may form part of your claim in the future. It is important to keep receipts of any expense you incur when paying for further treatment, medication, adaptations to home and transport, as it may be possible to recover these as part of your claim.
How long do I have to make a clinical negligence claim?
There is a three-year time limit to make a claim. This begins from either the date of the incident or from the date you became aware of the injury. If a court action is not raised within this three-year period, then you will lose your right to make a claim for compensation.
In cases involving deceased victims, the limitation period commences from the date of death, although in some circumstances it may commence from the date of the injury. In cases involving minors, the limitation period starts when they reach their 18th birthday.
We would always recommend you get in touch with a solicitor to discuss your claim at an early stage and clarify any time limits. The earlier the process begins, the greater chance there is of recovering the best evidence to support your claim.
What is the legal test for clinical negligence claims?
The test which has to be met to succeed in a clinical negligence claims is difficult to meet. Any failure must go beyond a mistake. The medical professional involved must be guilty of such failures as no doctor of ordinary skill would be guilty of if acting with ordinary care. Therefore, the failure must be one which no other competent medical professional in that field would have made.
You must be able to prove, with supportive independent medical evidence, the following:-
- there is a usual and normal practice;
- the person criticised has not adopted that practice; and
- that the course adopted is one which no professional would have taken if acting with ordinary care.
Additionally, in order to be successful for a claim for compensation, you must be able to prove causation. This means showing that the failure led to the injury.
What does the legal process involve?
Initial investigations will require to be conducted to establish what the prospects are of successfully making a claim. These investigations will include recovering your medical records and instructing at least one independent medical expert to provide an opinion on the treatment you have received and whether this fell below an acceptable standard.
If the medical expert is supportive of your claim, we will discuss the next steps with you and take your instructions as to how you wish to proceed. We would notify the defender you were making a claim against them. If necessary, provided you instructed us to do so, a court action would be raised. The court would then issue a timetable setting various dates both us and the defender would have to comply with. The final date will be the Proof, which is an evidential hearing with witnesses.
Clinical negligence claims can be complex and cases often take up to two years to conclude. It is important to note a court action will not be necessary in every case. The defender may want to resolve the case at an earlier stage and avoid court action.
How is compensation assessed?
We will work with you to understand the impact of the negligence on your life. This allows us to advise you on and maximise the compensation you are entitled to recover. Essentially, the compensation should put you in the position you would have been had the negligence not occurred.
The amount of compensation a court may award you will depend on the severity of the injury and the effect it has had, and will continue to have, on your life. Compensation is split into a number of different categories, some of which we have set out below: -
- Pain and suffering (known as solatium). This takes into account (1) the degree of pain you have experienced, the treatment required and whether there were any pre-existing medical issues which have been exacerbated by the incident, (2) the long-term effect of the injures and length of time it will take to make a full recovery and (3) the effect of the injury on your everyday life and any long-term implications. This includes your ability to continue to work or take part in hobbies and activities you previously enjoyed. We will consider previous cases involving similar injuries when considering what level of compensation you might be awarded. There are also guidelines (called the Judicial College Board Guidelines) which provide a range of awards depending on the nature of the injury.
- Wage loss. This is calculated by looking at what earnings you have lost as a result of the negligence. There may also be an entitlement to loss of future earnings, pension and disadvantage on the labour market. Reports from employment consultants and pension experts would be required to calculate these particular losses.
- Services. This head of claim is split into 1) an award of compensation made for services your family must provide you as a result of the negligence and 2) services you are no longer able to provide to your family as a result of negligence.
- Miscellaneous. This includes any other expenses such as the cost of medical treatment, rehabilitation or care, aids, travel expenses or adaptations to your home or car.
Our experienced Clinical negligence solicitors will be able to advise you on the various elements of your case to establish the value of your claim and maximise the compensation we recover on your behalf. MFMac's Compensation Calculator is a handy guide which provides you with an indication of the value of your claim. It is based on the Judicial College Guidelines which take account of recent court decisions and serve as a reference point for lawyers when considering compensation.
What next?
It is important you seek the correct legal advice at an early stage in order that your claim can be assessed. It is imperative that each case is considered on its own facts and merits. Our experienced Personal Injury team will take the time to assess your claim and will help you secure the compensation you are entitled to. Contact us today for a free initial chat on 0131 247 1000.
