14 Medical Accidents
2. What is a medical accident?
3. What should I do if I have suffered a medical accident?
4. How do I find out more about what happened to me?
5. What if I want to complain about a professional's behaviour?
6. When can I claim compensation?
7. How do I claim compensation?
8. How do I decide whether to take legal action?
If your solicitor says you have grounds for a legal claim, you still need to think about whether this is what you want and if it is going to provide the answer you want. It is not a decision you should take lightly. There are a number of things you need to be prepared for. Making a legal claim can be very stressful. You will have to go over what has happened to you many times, and this can be very upsetting.
Taking legal action can sometimes affect your ongoing treatment. Doctors and other health professionals may act differently towards you if they know you are suing.
You need to think about whether you can afford to pay for legal action and the risk of losing money if you lose your case or only prove part of your claim. When you start legal action, there is no guarantee that you will win your case. If you win, there is no guarantee that you will get the amount of compensation you want.
However, legal action can bring benefits apart from getting compensation. The legal investigation can sometimes help to get an explanation of what happened to you if you haven't already done so. Many victims of a medical accident feel they have no choice but to take legal action because they:
- need money to pay for extra care or equipment they need; or
- have already lost a lot of money - lost earnings, for example.
Can I bring a legal claim without using a solicitor?
It is almost impossible to bring a clinical negligence claim without using a solicitor. Clinical negligence claims are usually very complicated, mainly because of the complex medical evidence you will need to present your case. And if you do bring your own case and lose, you face the risk of having to pay the other side's costs.
How do I find the right solicitor?
You need to use a solicitor who specialises in such cases, and who understands the medical and legal issues. You should use a clinical negligence solicitor who has been accredited by the Legal Services Commission. These solicitors will belong to the clinical negligence panel of:
- The Law Society; or
- Action against Medical Accidents (AvMA).
Only solicitors who have met the Legal Services Commission's quality standards can take on publicly funded cases. See 'Further help' for information on how to find these solicitors, and for more information about the Legal Services Commission.
What other help can the solicitor give me?
Specialist clinical negligence solicitors can give advice on related issues including:
- inquests (a public hearing to find out the cause of someone's death);
- the Human Rights Act and how it relates to your rights as a patient;
- your local health authority not giving you the treatment you need;
- if the hospital or doctor wants to stop treatment or carry out out treatment against your will;
- if a healthcare professional or hospital has breached confidentiality (passed on personal information they shouldn't have);
- mental health care issues
- if you have been injured by a faulty drug or by medical equipment;
- helping you make a formal complaint to a professional regulatory organisation such as the General Medical Council; and
- treatment in care home.
Before you employ a solicitor to take on your case, you should ask them whether they have experience of successfully dealing with cases like yours.
How long do I have to claim compensation?
You must bring a claim for clinical negligence within three years of the date of your medical accident or 'adverse event'. The three-year time limit starts from either:
- the date when you had your medical accident or the treatment that caused your injury; or
- the date when you could first reasonably have realised that you had suffered an injury wrongfully. This is called your 'date of knowledge'.
It is always safer to assume that the three-year time limit runs from the date of the treatment that caused your injury, unless a solicitor advises you otherwise.
When the three-year time limit doesn't apply
For children, the three-year time limit does not start until their 18th birthday. This means, for example, that a child who was injured when they were born would have until they were 21 to start legal action. But you should not wait until then unless you have to. Before they are 18, a parent or other person close to them can make a claim for them. This is called acting as their 'litigation friend'.
Also, if the case involves a person who cannot manage their own affairs because of a mental disability, the three-year time limit doesn't apply until (and unless) they get over their mental disability.
The courts can, in extreme circumstances, allow you to bring your claim after the three-year time limit. You must not rely on this happening, but if there was a very good reason why you weren't able to bring your claim within three years, you should still talk to a solicitor about the possibility of starting a claim.
You should try to get a solicitor working on your case as soon as you can and long before the end of the three-year period because:
- the solicitor will need time to investigate and prepare your case before they can start the court proceedings; and
- the earlier your case is investigated, the more likely it is that documents needed to prove your case will still be available, and that people will be able to remember what happened.
Other legal time limits
If your claim is under the Human Rights Act, where a public body has breached or violated a fundamental right, you would normally have to bring such a claim within one year. For more about the Act, see the CLS Direct leaflet, ‘The Human Rights Act’.
If you want to challenge a decision or action made by a public body which you believe was unlawful and there is no other action you can take, you can apply to the courts for a judicial review. The public body could be, for example, an NHS organisation, the General Medical Council, the Ombudsman or a coroner. The normal time limit for making an application is three months, so you will need to seek urgent legal advice from a clinical negligence solicitor with experience of public law.
How will the solicitor assess my case?
When you first contact a solicitor, they will make a first assessment to decide whether they want to take on your case, based on how strong your case is. You can help the solicitor by putting together as much information as possible before you contact them. The solicitor will base their decision on:
- what you can tell them about what happened;
- your medical records, if you have them;
- the medical and legal issues;
- how much your claim could be worth;
- any extra information you have, such as complaints letters or other papers to support your case;
- whether your claim is within the legal time limit; and
- how your legal costs will be paid.
If you speak to several solicitors but they can't or won't help you, you can contact AvMA for advice. See 'Further help' for details.
Before a solicitor takes on your case, they will need to make sure that:
- your case has a good legal basis, and therefore has a reasonable chance of success; and
- the amount of compensation you could claim is enough to justify the legal costs.
9. What if I can't afford to pay for a solicitor?
10. What do I have to prove to claim compensation?
11. What can I claim compensation for?
12. What can I do if my treatment was private?
13. What if a relative has died as a result of a medical accident?
14. What if my injury was caused by faulty medical equipment?
15. What if I want to make sure that the same mistake is not repeated?
16. Further help
17. About this leaflet
This leaflet is published by the Legal Services Commission (LSC). It was written in association with Action Against Medical Accidents.
The leaflets are regularly updated but the law may have changed since they were printed so the information in them may be incorrect or out of date.
Leaflet Version: October 2017