Fatal injury medical negligence claims

The law states that, in most cases, someone who has been injured as a result of medical negligence has three years from the date of the negligence which caused the injury to issue court proceedings. If they fail to issue court proceedings within that time, their claim will be statute barred, meaning that they lose their right to bring a claim.

There are the following exceptions to the three-year rule:

• if a child is injured before they are 18, their three-year deadline expires on their 21st birthday. In other words, their time doesn’t start to run until they are 18;
• if the injured person is mentally disabled (lacks mental capacity) then their time doesn’t begin to run at all, unless their mental capacity is restored;
• where the injured person has died as a result of negligent treatment, the three-year time limit expires three years after the date of their death;
• if the injured person did not suspect or could not reasonably think they had been injured by negligence, the three-year time period will start to run when the injured person first became aware (or should have suspected) that they had been injured by negligent care;
• the court has a general discretion to extend the time limit in cases where none of the above exceptions apply, but only does so in exceptional circumstances.

Regardless of your time limit, we recommend that you contact our medical negligence solicitors as soon as you can, even if at that stage you are only considering whether to make a claim.

By contacting us early, it avoids later problems with deadlines and allows us to advise you on how to collect and preserve essential evidence. This enables us to ensure you have the best chance of securing your entitlement to full compensation for your claim.

If a baby, child, or teenager under the age of 18 makes a claim for compensation for injuries caused by medical negligence, their claim is made on their behalf by a ‘litigation friend’. This is usually a parent or guardian.

As the child’s solicitor, we have a responsibility to make sure that all decisions relating to the claim are made in the best interests of the child. To do this, we work very closely with the child’s family. Some important decisions, such as settlement agreements or the amount of money that is allocated to a child in a claim involving more than one claimant, must be approved by the court.

We are specialists in helping families obtain full compensation for children who have been very severely injured, leaving them with permanent disability and lifelong specialist needs. Our expert children’s claims service includes a dedicated Court of Protection team who help our clients protect, budget and access their compensation via deputyship and trusts, and an SEN team to ensure that their special educational needs are met. Find out more about how we help families, children, and teenagers with children’s claims.

If you think that you or a family member have received negligent medical treatment or have experienced malpractice, we recommend that you speak to one of our friendly, experienced clinical negligence claim solicitors as soon as possible.

You can contact us by telephone or by email. Your enquiry will be handled confidentially and preliminary advice in relation to pursuing a claim will be given free of charge.

Our medical negligence solicitors will ask you to tell us briefly what has happened, advise you about the limitation deadlines (time limits) which apply to your claim and whether we are able to help you investigate your claim.

Once our initial investigations have taken place, we will notify the defendant (hospital or doctor) of your intention to pursue a claim and invite them to respond, giving them an opportunity to admit liability, before court proceedings are issued.

If liability is admitted, we will enter judgment and apply for an interim payment as soon as possible to meet any urgent needs that you may have as a result of the negligently caused injury.

If liability is disputed, we will discuss with you the further steps that we need to take to progress your claim.

Our extensive guide on making a medical negligence claim explains the whole process, if you require any further information.

The duration of a medical negligence claim depends on the individual circumstances of the client’s case. The claim is likely to take less time to conclude where:

• liability is admitted by the defendant (NHS hospital or doctor);
• the injured person’s injuries have stabilised and their prognosis (long-term outcome) is clear;
• the injured person’s needs, the costs of meeting those needs and other financial losses are straightforward and easy to assess clearly.

Circumstances which make the claim more complex and therefore take longer to resolve include:

• where the defendant disputes that they were negligent or that the medical treatment given (even where admittedly negligent) caused the client’s injury;
• where the injured person is a child whose disability is expected to change with their growth and development over time;
• where multiple experts in different disciplines are needed to assess complex injuries and the likely long-term outcome.

Our medical negligence solicitors work hard to secure early admissions of liability and substantial interim payments so that we can begin to alleviate financial hardship and provide essential care, respite, specialist equipment, therapies and home adaptations long before the claim has settled. With liability judgments secured and interim funds in place, the individual and their family are able to focus on rebuilding their lives whilst we concentrate on valuing and negotiating settlement of the claim.

Compensation is carefully structured to ensure the best provision for the injured person’s needs. Our clients often benefit from different types of compensation, including:

• Interim payments – advance part payments of compensation, obtained as soon as possible after liability is established, to ease financial hardship and meet urgent needs, such as therapies, home adaptations and care. 
• Lump sum payments – most final settlements include a lump sum payment, either as the full compensation payment or to cover capital costs when combined with a PPO.
• Periodical payment orders (PPOs) - provide severely disabled claimants who have lifelong needs for care with the guarantee of lifelong, index-linked, tax-free annual payments. PPOs can also be paid to cover other ongoing costs, such as case management or special educational placements.

Where healthcare is found to be (legally) negligent, then the claimant (the person making the claim) must prove that their injury was caused or significantly worsened by the negligent care.

This is important because the patient may already be very ill when they receive negligent medical care. In those circumstances, they must prove that their injury (and its financial consequences) would have been avoided or greatly reduced if correct treatment had been given. This aspect of the medical negligence claim is known as ‘causation’. Causation must be proven, even if negligence is admitted, for the claim to succeed and compensation to be awarded.

Negligence and causation must be proven by supportive opinions from medical experts. We instruct experts in the same field of medicine as the negligent care to tell us whether the care that was given was of a reasonable standard. If negligence is proven, we ask medical specialists in the type of injury suffered, to confirm whether our client’s injury was caused or made worse by the negligent treatment, or would have been reduced or avoided with correct care.

In a medical negligence claim, compensation will only be paid for injuries and loss that we can prove were caused by the healthcare provider’s negligence. Once we know what mistakes were made, the next step (causation) is to identify the extent of the injury or disability that was caused by those mistakes.

Proving causation in complex medical negligence cases requires both medical expertise and understanding of the law. We often succeed in claims where NHS Resolution (the NHS’ defence organisation) has denied ‘causation’. You can read more about how we overcome difficulties with causation in complex birth injury cases.