Medical Negligence Compensation FAQ

Isn’t medical negligence just contributing to compensation culture?

The biggest misconception people have about those who make a medical negligence claim against the NHS is that they do so because they want cash in the bank. However, compensation is not a win or a windfall. Claimants aren’t elated like they’ve won the lottery.  Most would rather the incident had never happened to them.

Think of it this way: what would a life-changing injury be worth to you? The impact of an injury due to medical negligence shouldn’t be underestimated.

For example, delayed diagnosis of cancer changes life as you know it forever. You’re constantly questioning whether the outcome would have been different had you received an earlier diagnosis or treatment. Will you be able to carry on working through treatment? Would you have needed that invasive treatment that drained the life out of you? Would you have lived a few more years to see your children or grandchildren grow?

Equally, a failed hip or knee replacement could mean the patient can’t drive or walk, so they become reliant on others. They can’t play with their children or grandchildren, or enjoy hobbies they once did, and spend more time confined to the house, impacting their mental health. Then they have to go back into hospital for further surgery and start the recovery process again.

Nobody plans to be injured or experience needless pain and suffering, but neither should they lose out financially because of someone else’s mistakes.

I had a bad health experience – am I automatically entitled to compensation?

No, not everyone who experiences medical harm will have a claim for medical negligence compensation. Some injuries are just caused by unavoidable, unfortunate non-negligent accidents. They happen every day, even in medical settings.

On the other hand, negligence is where you have been injured due to the fault of another person's lack of care, attention or action. If this has happened then you may claim but the truth must always be told about your injuries and recovery. There are strict rules in place to prevent an influx of people making exaggerated, fraudulent or unsubstantiated claims. There have now been multiple cases where claimants have been given a prison sentence after being found to be untruthful about their recovery.

In order for a medical negligence claim to be successful, your solicitor has to establish liability. This means another person(s) was at fault or responsible for your injuries. It must be proven that a medical professional failed to provide a reasonable standard of care.

You must also prove causation. This means that the error, omission or act in question directly caused your injuries. If you have pre-existing conditions, it can make this part more difficult, though not impossible.

If a person dies during treatment, it isn’t always due to negligence; same goes for if a patient cannot be cured of their illness.

How long after an incident can you claim?

The limitation period for medical negligence claims is usually three years from the date of the incident or when you first realised your symptoms may have been caused by negligence.

For children, the limitation period begins on their 18th birthday, so they have until they reach 21 to make a claim.

In some circumstances where the limitation period is reaching or has already surpassed expiration, a solicitor can apply to the court to extend it. It is always worth talking to us about a claim in which time appears to have expired.

What if I recover from my injuries?

That doesn’t matter. So long as a claim is made within the limitation period (or you are granted an extension) then a claim can still be made.

If you are fortunate to have made a good recovery and have no lasting effects that impact your daily life, it may be that the value of a claim is lower as a result. For claimants who have ongoing future needs their claim for future losses (“special losses”) is likely to be higher, covering such things as loss of earnings due to incapacity, or care/home adaptation costs.

If you start to recover, you must be honest with your solicitor about any improvements.

Is there an age limit for compensation?

The only age limit in the UK is that people under 18 cannot file their own compensation claim. A parent or guardian must claim on their behalf. Any compensation that they receive is held in a trust until they reach 18.

Can I claim if I don’t live in the UK?

At Medical Solicitors, we specialise in medical negligence claims relating to healthcare providers in England and Wales and will be more than willing to help if your case is located in either of these regions. Unfortunately, we do not handle medical negligence claims outside of England and Wales.

However, if you live abroad but feel you received negligent care within England or Wales, then we can help you.

How much compensation could I get?

Calculating compensation is a detailed process. We cannot just pluck a figure out of thin air or make comparison with the very high awards made in jurisdictions such as the United States. We are bound by U.K. guidelines and case law.

In medical negligence law, the general damages part of the compensation is dictated by the Judicial College Guidelines. They update a Guideline publication every year that sets out brackets of figures for different types of injuries, depending on the severity. This acts as a starting point in negotiations and catalogues the level of damages which are considered fair and just in respect of varying types of injuries.

General damages are things that are priceless. It mainly accounts for a person’s pain and suffering which may have lasted days, weeks, months or permanently. The more severe and long lasting an injury, the higher the damages. Injuries can by physical, mental or both. General damages can also include a claim for loss of amenity that impacts the enjoyment of life, such as hobbies or other activities. An injury may affect a person's ability to play sport, walk their daughter down the aisle, or have more children,

The other part of compensation is called special damages. This is a claim for anything that has a cost that has been incurred (or will be incurred in the future) due to the negligence. Things like care or private treatment, loss of earnings or pension, home adaptations, or travel costs to and from medical appointments. In loss of fertility claims, you may even be able to claim for surrogacy costs abroad.

Documentary evidence will be needed to back up monetary claims for things like loss of earnings, and claimants are advised to keep receipts or records for monies spent.

While we can potentially give people a ballpark figure for the amount of compensation they could receive, we cannot be certain until investigations are underway.

Even if they had the same injury, two people will always have different compensation amounts as they have different needs. Different ages, earnings, mortgages, dependants. In relation to the value of the injury itself we are reliant on a doctor to provide a report commenting on a claimant’s condition and their prognosis i.e. the prediction for them for the future.

Who pays my compensation?

It depends on whether your treatment was by the NHS or while in private hands.

If your claim is against the NHS, then compensation is paid by NHS Resolution, a specialist insurer that oversees all cases brought against the health service.

Every NHS Trust pays NHS Resolution an annual premium which covers damages awarded in medical negligence cases. To this extent, the NHS self-insures which saves the NHS a huge amount of money every year. In essence, the government budgets for clinical negligence claims.

If you were injured due to private medical treatment, the claim will be against the individual rather than the establishment. They should have their own liability insurance to protect against potential claims.

Am I entitled to anything before the claim settles?

If you find yourself in financial difficulty during a medical negligence claim, you may be able to apply for part payment of your compensation in advance of a final settlement. These are known as interim payments and can be applied for once court proceedings have been issued and liability has been admitted, or before court proceedings if liability has been accepted by the potential defendant.

Interim payments will depend on your individual circumstances and the predicted value of your claim. Anything paid early will be deducted from your final settlement amount.

Interim payments may be used to replace loss of earnings, or pay for specialist therapy, care costs, or home adaptations that are immediately necessary.

What will it cost me to claim?

At Medical Solicitors, we offer no win no fee agreements (also known as a Conditional Fee Agreement) if we think a claim has a strong chance of success. This means there are no upfront costs, no unexpected fees, and no risk so you can make a compensation claim without the worry of being left with a legal bill you can't afford.

You won't pay a penny for your claim unless it is successful. Even then, our success fees are capped by law at a certain percentage (agreed when signing the no win no fee contract) and will be deducted from any compensation you receive.

If you don’t win your claim, we write off all our costs, and any expenses incurred are covered by the insurance policies we have in place.

I’m on benefits – does this affect a compensation claim?

If your injuries have led to you claiming Universal Credit or other state benefits, then the government is entitled to recover any monies paid to you from your compensation. This is called the Compensation Recovery Unit.

In essence, it prevents you from receiving two lots of money for one loss: once from the government, and the second from the defendant at fault.

Benefits can only be recovered on a ‘like for like’ basis. For example, benefits paid for being out of work can only be subtracted from the part of your compensation which represents lost earnings.

What if I get divorced? Will I keep my compensation?

Sadly, some relationships do breakdown due to the pressures and life-changing impact of medical negligence. If your marriage ends and you get divorced, unfortunately compensation is not automatically protected from the marital pot.

It may be argued that any general damages (those for your pain and suffering) should be excluded from the divorce settlements as these were paid for your own individual injuries. Similarly, if your claim includes compensation for ongoing care costs, you may be able to protect that element to prevent you from losing out on what you need to ensure a certain standard of living.

This is a family law matter and a specialist family solicitor will be able to advise you on whether there are ways you can protect your compensation against divorce.

About Medical Solicitors

Medical Solicitors is a specialist UK law firm that only handles medical negligence claims. We have been supporting and winning compensation for our clients for over two decades and have three offices in Sheffield, York and Hull.

We strive to help as many people as possible get the answers they are looking for. The specialist team is made of up experienced legal professionals who all have different specialisms relating to areas of medical negligence, from birth injuries to cancer, orthopaedic surgery to DVT. 

We truly care about giving the best legal advice and the highest standards of client care which is backed up by our 5 star reviews and testimonials from clients. 

If you think you may have a claim for compensation, speak to one of our lawyers free of charge.