How Is Your Claim Investigated?

As soon as you start to think you might have been the victim of clinical negligence, we’d recommend getting in touch with a trained legal adviser. You can reach one for free advice on 0800 234 6438, and they’ll also be able to let you know whether they think you can claim.

There are two main reasons why it’s important to act as quickly as possible. Firstly, the details of the case will still be fresh in your mind and the records are probably going to be easier to track down.

Secondly, there’s a three-year time limit in place for most types of personal injury claims, starting from the date when you became aware that you were treated negligently. The details of this limit are set out in the Limitation Act 1980.

In some cases, you might have more than three years to make your claim, such as for cases involving children under the age of 18. Other exceptions include patients who can’t claim on their own because of a disability covered by the Mental Health Act 1983.

To make a clinical negligence claim, your solicitor will need to prove that the treatment you received fell below a certain standard, and that you have suffered an injury or illness because of it.

However, what makes these claims complex is that the details of your medical treatment are likely to be debated by different experts.

To make a successful case, your solicitor will gather together as many details as possible and use medical experts to show that your treatment was negligent and caused your injury or illness.

The first action for many patients is to make an official complaint. Making a complaint won’t have an impact on any future legal action and may well be helpful when it comes to building a case.

You should receive a reply, either verbally or in writing, within three working days – this should include an agreement to meet and talk about how your complaint will be handled as well as how long it’s likely to take.

The agency that will investigate your medical malpractice case depends on the offending party.

In case of potential criminal misconduct, the General Medical Council investigates doctors, while the Nursing and Midwifery Council deals with cases against nursing and midwifery staff.

Your solicitor will ensure you have support throughout the process and maintain all points of contact with the NHS or private hospital’s insurance provider.

When you speak to your solicitor, they’ll gather some information about your injury or illness so they can decide the best way to move forward with your claim.

The details they’ll try to get will include:

• Why you needed medical treatment in the first place
• The names of the medical staff involved with your case
• Details of any witnesses, including relatives or friends
• The details of any later consultations
• Whether you’ve complained, either officially or directly to the clinician

They’ll then send a letter to the member of staff or body who’s responsible for your injury, setting out these details and telling them that you’re intending to make a claim.

If the case seems strong enough, then your solicitor might even invite a settlement at this stage. In many cases, this is enough to draw an admission of negligence and offer of compensation, although many complex arguments will still need to take place after this.

Another purpose of this initial letter is to request, with your permission, access to your medical records. The right to access your own medical records is set out in the Data Protection Act 1998, under section 7 and the NHS has a legal duty to respond to such a request within 40 days.

Your solicitor and a medical expert will look through your records and will consider them alongside your own account of what happened. They’ll then use these to support your case.

Finding the right medical expert to be involved in your case is one of the most important duties of your solicitor.

Your injury solicitor will know exactly where to find a medical expert with the knowledge and experience needed. Although they’ll be referred to as part of ‘your’ team, the medical expert will have a duty to give an honest and independent opinion.

The British Medical Journal gives the following advice to expert medical witnesses:

• They should work in the same discipline as the negligent practitioner
• They should give an analytical, objective, balanced, and accurate opinion
• They should give an opinion based on the balance of probabilities

Your clinical negligence solicitor will choose a medical expert who knows the area of medicine related to your case, and who will be able to present their findings in court (if needed) in a calm and persuasive way.

As with most compensation claims, you’ll have a maximum of three years from the date of your injury. However, there are two main exceptions to the rule:

1. Children who are victims of clinical negligence have three years from the date they turn 18 to make a claim.
2. If an individual has a lack of mental capacity or isn’t aware medical negligence occurred, due to being in a coma, they have three years from the date they learn about their injury.

So, in some cases, you might be able to claim after three years, but it depends on the circumstances surrounding your injuries.