Ken Thomas, medical negligence expert at Harding Evans answers some key questions on making and pursuing a claim.

1. What is meant by clinical negligence?
The term covers any claim for compensation against the medical profession, to include GPs, hospital doctors and nurses, dentists, pharmacists and other healthcare professionals.


2. Could you give me some examples
A hospital casualty unit may have failed to detect a dislocated shoulder or a surgical team negligently severed a nerve in theatre. GPs may be negligent if they fail to refer a patient on for specialist care soon enough or miss an obvious diagnosis. Dental claims often arise for failure to properly treat decay whilst pharmacists may be negligent if they give out a different drug to that which was prescribed.


3. How many such claims are brought every year?
Definitive statistics are hard to come by. Surprisingly, there is no central database of medical negligence claims. However, it is estimated that in the UK over a million medical mistakes occur every year in treating patients. Furthermore, it has been suggested that thousands of patients die as a result of medical errors. Unfortunately, funding difficulties in the NHS, and overstretched staff, may well mean medical errors will continue to increase in frequency.

Despite the media’s suggestion of a “compensation culture”, only a tiny proportion of individuals injured by medical errors take legal action. However, medical litigation can fulfil an important role in ensuring the medical profession does all it can to meet the duty of care owed to patients. Legal action can prevent the same error being made again.


4. Is legal aid still available for these cases?
Yes. The potential claimant must satisfy two tests. Firstly they must be financially eligible and secondly, they must have a claim which stands a significant likelihood of succeeding. Only solicitors who have a contract with the Legal Services Commission can act on legally aided clinical negligence claims. Children will almost always be financially eligible as their parents’ income and savings are not taken into account.


5. What if I am not eligible? How else can I fund an investigation and claim?
You may have the benefit of legal expenses insurance which could be attached to any insurance policy you have, for instance home contents. That insurer might fund your case at no cost to yourself. “No Win, No Fee” arrangements are also available. However, again, this is a difficult area of the law and you should ensure you seek advice from a specialist solicitor experienced in handling these claims. That should ideally be a solicitor who is on a recognised panel of medical negligence solicitors.


6. What are the time limits for these claims?
Generally there is a three year rule. For adults, a claim must be commenced at Court within three years of the alleged negligence or the date when he or she learnt what had happened. With children, the three years does not commence until their 18th birthday, so that a child effectively has until their 21st birthday to commence Court proceedings. Where an individual lacks mental capacity, (for example cerebral palsy patients), then the time limit may not apply at all. That said, these cases are often best investigated as soon as possible after the events complained of.


7. How long do these cases take?
It very much depends upon the nature of the claim. A small case involving a failure to detect a broken bone in casualty may only take a few months. A high-value cerebral palsy claim may take several years to investigate. However, generally these cases are now being processed more quickly than used to be the case. There is, for instance, in Wales a Pilot Scheme for certain cases against Welsh hospitals to be progressed to a “speedy” timetable, and at a fixed cost.


8. Is there any point in trying to bring a claim against the medical profession? Don’t they all “close ranks”?
Whilst that may have been true in the past, it is very difficult for that to happen now. Where a mistake has been made, then the hospital or surgery that made the mistake usually nowadays respond, quite openly, and explain what went wrong after carrying out its own investigation. Moreover, in investigating these cases, independent medical expert opinion can be secured on the part of the patient.

That means going to a medical expert outside of the local area and asking him or her to assess the treatment received. That expert has a Court imposed duty to be impartial – if they find that the care offered has been negligent, they are duty bound to say so. Healthcare professionals are now much more willing to acknowledge and pinpoint medical errors than was true a generation ago.