Medical professionals work in challenging environments, and they work, to high standards and deliver care well. However, there are times when your care may drop below that standard, and you suffer a worse outcome because of this negligence.
If you are considering bringing a claim for clinical negligence you might be feeling lost, unsure of where to begin, or even unsure if you want to bring a claim. This article discusses the five key questions you should ask yourself before starting a case for Clinical Negligence, to understand if you are prepared to do so.
Are you prepared to go to Court if needed?
Most Clinical Negligence claims will settle out of court. Statistically speaking fewer than 5% of cases result in a full trial at Court. However, it is not uncommon for Court proceedings to start.
Regardless of whether you think you will end up in Court or settle before the trial date comes around, you should always mentally prepare yourself to attend Court. You should also always conduct yourself and your claim with the thought that everything you say or do, about your case, could be seen by a Judge.
Ask yourself are you prepared to go to Court? Are you willing to go under oath and give witness evidence in Court? Are you ready to stand before a Judge and answer their questions? If not, then that does not mean you should not start a claim, but you should make your solicitor aware of this and follow their advice.
Are you ready to answer sensitive questions about your medical treatment?
Like the above, this question deals with your personal comfort levels and what you are or are not willing to do.
Your solicitor must play devil’s advocate at times to predict what the Defendant’s arguments will be. Which means that there will be times when they will ask you uncomfortable questions, or questions that may make you feel like they are against you. They are doing this so that they can be as prepared as possible to counteract the Defendant’s arguments.
For example, if your solicitor expects the Defendant’s to argue that you did not raise your concerns about your treatment to your doctor, then they will ask you questions such as “why did you wait six months to raise your concerns?” “Why did you continue to allow Dr X to treat you if you didn’t trust them?” “Why did you not get a second opinion?” “Why did you wait until X, Y, Z happened before acting?” They are not accusing you of poor judgement or bad behaviour; they are trying to destroy the Defendant’s argument.
It is best to be fully recovered before beginning a claim as it will make your injury easier to value, aka put a monetary figure on your injury/delayed recovery etc. It is also commonly accepted that bringing a claim can be stressful for some, and if you feel that you are likely to find bringing a claim stressful then stress is not going to help your health. It may be in your best interests to wait a few months or weeks until your health has improved enough for you to be able to manage.
You have three years to bring a claim; this time limit begins from the date you realised that you suffered negligence. This is the Date of Knowledge, and it means that there is time for you to recover as much as possible before starting a claim.
While it is not advisable to wait until the three-year deadline is almost up. However, it is wise to make sure you have recovered completely, or if not completely then to a high degree, before bringing a claim. If you are planning on using a solicitor to bring your clinical negligence claim, then it would be reasonable to approach them at least six months before the three-year deadline has run out, for them to assess your case.
Are you in time to bring a claim?
Following on from the above, you must make sure that you are in time to bring a claim. As said above, you have three years from the date you realised you had suffered negligence to do so. If you are out of time, then it is unlikely that you will be able to bring a claim, as it will be time barred.
Although, in some exceptional circumstances the Courts may allow you to go ahead even if you are out of time.
What funding options are available?
Most clinical negligence claims can be taken on by a solicitor under a No Win No Fee Agreement. Under this type of agreement if you are successful a part of your compensation will go to pay your solicitor’s legal fees. This is limited to 25% of your compensation. By law, a solicitor cannot charge more than 25% of your compensation. However, you may be able to negotiate a lower percentage with your solicitor.
Under a No Win No Fee Agreement if you are not successful you will not pay any legal fees. But you could still be liable for disbursements that your solicitor has had to pay on your behalf. Disbursements include a charge to get your medical records, the medical expert’s fee, Court fees, etc. Your solicitor should get insurance to protect you from having to pay these disbursements if you are not successful.
Other funding options are available; you could fund your claim using pre-existing legal coverage on your house & contents insurance or your car insurance. You should check your insurance policies to see if you have this kind of coverage. There are benefits to using pre-existing insurance policies to pay for claims, as some insurance providers will allow you to keep 100% of your compensation. There are downsides, however, those being that it is unlikely that you will be able to choose your solicitor, you will use a solicitor chosen by the insurance company, and you will deal with them via telephone and email, it is unlikely that you will ever meet them face to face.
You should carefully consider all the above questions before you approach a solicitor about your clinical negligence claim. Bringing a claim is a long process and can be laborious at times. Some will find the process stressful and may struggle with it, but if you give the process due consideration, instruct a solicitor and follow their advice then this will make things a lot easier for you.