Medical negligence may seem like a tricky and complex problem to us as it requires knowledge of the medical and the legal field –– and not everybody happens to own a law or medical degree.
However, How Long Do You Have To Make A Claim For Medical Negligence? We’ve compiled a guide that will break down and simplify what you can do on your end to protect yourself against medical negligence!
Table of Contents
Culprits of Medical Negligence
The healthcare industry consists of a vast range of specialists and personnel, most of which can be liable for medical negligence. You can make claims against doctors, dentists, ophthalmologists, nurses, hospitals, gynecologists, physiotherapists, and even mental healthcare personnel.
Proving Medical Negligence
Before you can proceed with your claims, you will have to be able to prove that there was medical negligence. You should be able to substantiate the medical negligence with the financial, psychological, and physical damage you have suffered. This means showing a probable link between the incompetence of healthcare staff and the unnecessary deterioration of your condition.
It is always better to engage a specialist in medical negligence claims as they are more well-versed with the problems and solutions. Depending on the details of your case, an experienced medical malpractice lawyer will strive for justice gathering all the required and useful facts about the medical negligence that caused your injuries. Being backed by a well-informed attorney, you will be assured that the healthcare provider is held liable for their actions and you’ll get the highest amount of compensation to cover your afterward expenses. This will also alleviate the stress of trying to claim medical negligence especially after being a victim of one. Thus, engaging a professional or a lawyer in medical negligence will not only reduce the trouble but also maximize the chances of success of your case!
Time Limit for Medical Negligence
For most cases, medical negligence claims expire three years after the medical negligence has been committed or when the consequences of the medical negligence become apparent –– also known as the “date of knowledge”. However, there are some special circumstances where the three-year period does not apply.
Children
The 3-year limitation period does not apply to children in the same way as adults. For children, the 3-year limitation period only begins when they turn 18. For instance, if a child who suffers a birth injury will have until their 21st birthday to make a medical negligence compensation claim.
Mental Capacity
In cases where the injured person loses their mental capacity to independently make decisions and make a claim, the 3-year limitation period does not apply. It will only apply if the injured person regains mental capacity.
It is also possible that the injured person never regains mental capacity; in this case, the 3-year time limit will never begin and a relative of the injured person can pursue a claim on their behalf.
Mortality
In instances where the patient dies during the claim, whether it is due to medical negligence or not, the family has three years from the date of death to pursue the claim. If the three-year limitation has passed, then it does not apply.
Cost of Pursuing Medical Negligence Claims
Most medical negligence claims have a ‘no win no fee’ rule to minimize risks for you cost-wise. Your solicitor will advise you accordingly upon your first meeting, allowing you to know your chances of winning so you would not chase a futile claim.
If your solicitor wins the case for you, the culprit will pay the legal costs but do note that the solicitor might also charge you with a fixed percentage of the money you won. However, do not worry as a ‘Client Care’ letter will be given to you by your solicitor which consists of the procedures of the claims in detail.
As the funding for solicitors differs, they will discuss it with you upon initiation. For now, it is good to know the four main options you have.
Private Funding
This option is where you will handle all costs with your own money, including trial costs, administration costs, and legal costs. This option is rare and not the best choice but it does save a lot of hassle if you can afford it.
Conditional Fee Agreements (CFA)
Otherwise recognized as the ‘no win no fee agreement, you won’t be charged with legal costs if you lose the case unless you fail to comply with certain procedures, causing the solicitors to lose the case. However, the CFA also includes a success charge where the solicitor will charge you a fixed percentage that was initially agreed upon by both parties if you win the case.
Before The Event (BTE) and After The Event (ATE) Insurance
BTE is a before the event insurance policy and if you have this it is usually in the form of an add-on to your home or motor insurance policy. The subsequent provider would have to fork out costs if you lose your claim once the court proceedings have been issued.
ATE insurance policies normally cover the legal costs which a claimant must pay to a defendant when a claim is unsuccessful –– either the claim is abandoned, lost at trial, or settled after the claimant is liable to pay the cost incurred by the defendant. The overview of an ATE Insurance policy protects the claimant against potential risks right from the start; if a claim is insured at a late stage then (as with most insurance policies) costs and disbursements that occurred before the date of the ATE Insurance policy will not normally be covered.
Legal Aid
Nowadays the legal aid option doesn’t apply to most people except for claims where a child has suffered a severe brain injury during pregnancy, childbirth, or two months after giving birth.
Claiming and Proving Losses
Your losses must be presented concerning the physical and psychological consequences of medical negligence for it to be claimable. You can also claim potential future losses incurred due to the negligence. This includes legal costs, general damages, and special damages which have to be substantiated by receipts and legal proof for it to be claimable. Discuss this with your solicitor and they will pursue the best course of action for you!
Investigation
Legal procedures will be discussed with you with your solicitor, but what you need to prepare on your end are your medical treatment history and a detailed written statement. If the opposition admits the claim, an out-of-court settlement can be made and the whole process will be smoother and cheaper.
Trial
If the opposition refutes the claim or an agreeable settlement cannot be met, you will, unfortunately, have to go to court. You would most likely not have to provide detailed evidence as your statement will be regarded as evidence itself. However, you can expect the opposition to question your statement,
If you win, the judge will give a ruling on your compensation and the deadline of payment while the defendant will have to pay your legal costs. If you lose, there is the option of appealing even though it is often not encouraged. Overall, the technicalities, strategies, and procedures will be discussed with your solicitor. They will analyze the factors and advise you accordingly in your best interests. If you have the ‘no win no fee’ on your side, you will have no extra costs to deal with.
Conclusion
Overall, pursuing a medical negligence claim can be tiring, on top of the agony of the medical negligence itself. It is important to engage solicitors whom you trust to have your best interests instead of going after your money. After finding the right solicitor, you need to listen to their advice and cooperate with them to achieve the best results possible. After reading this guide, we hope you have a clearer picture of your options and we trust that you will be able to make a more informed decision along the way!
