Can You Make a Medical Negligence Claim for Someone Else?

Healthcare practitioners are under a legal duty to exercise reasonable care when caring for their patients. If they don’t, and if the patient suffers harm due to the treatment they received, the medical professional may be liable for medical negligence.

Medical negligence claims (sometimes referred to as clinical negligence claims) can be brought against the entity with legal responsibility, which might be an NHS Trust if the healthcare professional works for the NHS or a private healthcare provider if the medical malpractice occurred in the private sector.

Yes, strict time limits, known as the ‘limitation period’, apply to personal injury cases. The limitation period starts from the date of the negligence or the date on which the patient became aware that their treatment caused the injury. If the patient misses the deadline, they cannot bring proceedings.

To pursue a medical negligence claim, the patient must be over the age of 18 and have mental capacity. If your loved one cannot bring proceedings, they may still be entitled to compensation for their negligent treatment, but they will need someone who will act in their best interests to bring the case for them.

If your loved one cannot make a claim for clinical negligence, you may be able to do so on their behalf as their ‘litigation friend’. We explain later the circumstances in which your loved one may need the assistance of a litigation friend when claiming compensation for negligent treatment.

To be a litigation friend, you must be able to make decisions about the case fairly and competently, and you must not have any personal interests adverse to those of your loved one.

When considering whether you can make decisions about the claim fairly and competently, you should consider whether you will be able to dedicate the time required to run the case effectively.

As a litigation friend, you will assist your loved one in conducting their medical negligence claim. Your duties will include:

• Seeking legal advice when necessary.
• Making decisions about the claim.
• Giving instructions to the solicitor.
• Dealing with any correspondence.
• Approving and signing documentation.
• Attending meetings and court hearings.
• Keeping your loved one updated about the progress of their claim.

It is up to the court to decide who can be a litigation friend. Applying for the role is fairly straightforward.

You must complete and file at court a certificate of suitability confirming that your loved one lacks capacity, together with a medical report confirming this.

You must state that you can act fairly and competently and that you consent to the appointment. Your medical negligence lawyer will arrange this on your behalf.

Generally speaking, medical negligence cases involving a litigation friend proceed in the same way as any others. The key difference is that the court must approve any settlement reached to ensure the compensation awarded is fair, meets the patient’s needs, and covers their financial losses.

Where your child is awarded compensation, the funds will be placed in a Special Investment Account, which they can access when they turn 18. If there are exceptional circumstances for releasing the medical negligence compensation sooner, for example, to pay the injured child’s medical expenses, the court may agree to do so.

In some cases, such as those involving birth injuries, the independent medical experts who assess your child to establish their prognosis may be unable to identify the extent of the harm suffered and predict the medical care your child will require until later.

If the medical evidence points to the need to wait to determine the full impact of the medical mistake, the court may award an ‘interim payment’ pending the final resolution of your child’s medical negligence case to assist with the child’s medical and rehabilitation needs.

Mental capacity relates to an individual’s ability to make decisions. It is decision-specific, meaning your loved one may be able to make simple decisions, such as those relating to their daily life, but not more complex decisions, like those required in legal proceedings.

The Mental Capacity Act 2005 provides the test to be applied when assessing whether a person possesses the requisite capacity. It states that someone lacks the capacity to make a decision if they cannot:

• Understand the information relevant to the decision,
• Retain the information,
• Use or weigh that information as part of the decision-making process, or
• Communicate the decision

Their inability must be due to an impairment or disturbance in their mind or brain functioning.

A medical negligence solicitor will assess whether your loved one has the capacity to instruct them in connection with their medical negligence case. When doing so, they will take account of various factors, including:

Whether they understand how their claim will be funded, for example, through a conditional fee agreement, more commonly known as a no-win, no-fee agreement.

• Whether they understand the risk that their claim might not succeed.
• Whether they can make the sort of important decisions that will arise in their claim.
• Whether they are capable of giving the solicitor proper instructions about their claim.
• Whether they are capable of approving a settlement.

If the medical negligence solicitor is unsure about your loved one’s capacity, they should seek assistance from a qualified professional, such as a psychiatrist, who can review the medical records, assess the person, and prepare reports relating to capacity.

Your loved one may be unable to make a claim because of the negligence, for example, if it caused a brain injury or because of a pre-existing condition or injury that may be detailed in their medical records.

If they cannot bring a claim on their own behalf, they will become a ‘protected party’. You can then apply to make the claim for them.

Your loved one will not be unable to make a claim in their own name merely by virtue of living with a disability. However, if that disability affects their decision-making ability, they may be deemed a protected party and need you to make the claim on their behalf.

Your loved one’s disability may mean that, whilst they have capacity in the legal sense, they struggle to deal with the matters raised by the claim, either physically or mentally.

In these circumstances, you cannot take over the running of the case, but you can support them by, for example, gathering evidence and accompanying them to meetings and hearings.

You will not need to bring a medical negligence claim on behalf of elderly relatives purely because of their age. Even if they are living with a condition that affects their cognitive functions, such as dementia, they can still run the claim themselves unless they don’t have mental capacity.

Even if your elderly relative has the capacity to run their claim, you can still help them. Much like the situation in relation to someone living with disabilities, you cannot make decisions on their behalf, but you can help make matters easier for them.

For example, you can gather evidence about the treatment provided to assist their claim and accompany them to medical appointments, meetings, and court hearings.

A litigation friend must make a claim on behalf of anyone under 18. The litigation friend can be anyone who can act fairly and competently but is usually the child’s parent or legal guardian.

If nobody pursues a potential claim on behalf of a child, your child can do so themselves when they turn 18, provided they do so by their 21st birthday.

Sometimes, the injury caused by health professionals is so severe that it results in a person’s death. In these cases, the entitlement to pursue those responsible continues.

The people responsible for administering the estate, who will be either the executors or administrators, can claim compensation for the deceased person’s pain and suffering and any losses suffered by the estate as a result of the clinical negligence.

Complex rules apply to a litigation friend’s liability for legal costs, and your legal team should explain your exposure in this regard. However, most clinical negligence lawyers provide legal representation under no-win, no-fee agreements, which usually expose the party to no financial risk.

Under a no-win, no-fee arrangement, the party bringing the claim does not pay their solicitor’s legal costs unless and until their claim succeeds. At that point, they pay the success fee detailed in the no-win, no-fee agreement. The fee cannot be greater than 25% of the clinical negligence compensation.