Can (and should) I Make a Medical Negligence Claim?

By Nikki Ealey


When people approach me to discuss whether they have a claim for medical negligence, one of the questions they will often ask is whether it is worth it? That is not something we can really answer for you; what you deem as being a worthy cause to make a claim is a very personal and subjective decision which you need to make for yourself.

What I can tell you is some of the factors to bear in mind to ensure you are making the right decision for you.

What do I want to achieve?

If you have been seriously injured and you are going to need compensation to go towards or cover what you need in terms of care, treatment, loss of earnings, accommodation and more, then a claim will be the best course of action.

A negligence claim aims to compensate you for the financial losses or expenses you have already incurred or will need to incur in the future. A claim focuses on what happened to you, what the situation would have been if the care had not been negligent, and how this has impacted you. This means it is also important to remember that a claim is not about punishing or reprimanding the organisation or medical professionals involved. A claim does not change protocols or how much budget is allocated to a particular area. A claim is about putting you in the position you would have been in. The claim will establish what you need which will be even more critical if you have life-changing injuries.

If your intention is to fix what went wrong so that it does not happen to someone else then you should consider making a complaint to the relevant organisation instead. This will allow you to flag any issues or areas of concern and will trigger an investigation. If that investigation identifies any issues then steps may be taken to change the procedures, retrain staff etc. The complaint process is not meant to attribute blame but rather to focus on improving care for future patients and if necessary, recognise your poor experience. Occasionally the response to a complaint may highlight serious failings which then lead on to a medical negligence claim but that should not be the goal.

Do I have a good claim?

That can be hard to say at the outset and we will need to collate the information, medical records and understand what has happened. There will usually need to be some form of legal and medical investigation by us to confirm with any certainty. However the more detail you can provide as early as possible, the clearer the picture and the easier it is to identify the key issues and allegations. Claims can evolve as we build the picture. If you already have copies of records, a diary of events or other information to shed more light on what happened and why, then that is even better. Examples of the key paperwork we would obtain in our investigations are:

  1. Your full medical records and any scans which we can obtain or you can obtain for yourself with a Subject Access Request before you approach us.
  2. Any complaint correspondence if you have already submitted a complaint.
  3. Any investigation paperwork you may have received or been notified about.

b) and c) are not always relevant but if you already have any or all of these when you decide to make a claim then we will be in a much better position to answer this question for you earlier on.

But what if they said sorry or told me something went wrong?

This does not necessarily mean you have a good claim. There are two aspects to a negligence claim, the first is proving that you received treatment which did not meet the necessary standard of care (also known as breach of duty). Receiving an apology or being told something was done wrong does not always mean they did not meet their standard of care but it may be a good starting point in understanding where your treatment was lacking.

If you can prove that there was a breach of duty then you also have to prove that you would have been in a different position if you had received the correct care i.e. you would have had a better outcome if things had progressed as they should have done. We refer to this as causation and you cannot make a claim without being able to prove this even if you did prove there was a breach of duty.

Do I want to resolve this quickly?

Claims are not about making faster progress up a waiting list. Unfortunately, the sad reality particularly in a post-pandemic world is that negligence claims are not fast. Even with all the best will in the world, there are certain steps that have to be completed to get the claim to a position where settling it is even possible. Those steps usually take months. Wherever possible, we will request or apply to the court for interim payments (a downpayment of compensation) while the claim is still ongoing which can be used to pay for treatment and rehabilitation while you are waiting to conclude the claim. However this is not always available as it does generally require the Defendant to have made certain admissions.

If you are considering making a claim, or writing a complaint, we are always happy to have a discussion in order to help you answer these questions and decide the best course of action for you.