Medical Negligence: Will I have to go to court?

What is medical negligence?

Medical negligence is a type of personal injury claim and the most complicated type. You may hear people refer to it as clinical negligence. It is where a person who works in the medical profession does not meet the legal and professional standards of care that they should. As a result, their patient suffers an injury or their existing condition worsens. The result can be either:

• minor
• life-changing, or
• fatal 

There are many different incidents which can be classed as medical negligence. This includes, for example:

• misdiagnosis
• a GP surgery injury
• hospital negligence
• birth injury negligence
• dental negligence
• cancer negligence

Examples of medical negligence include:

• procedures that result in disfiguring or scaring
• wrong prescription of medication
• leaving a foreign body in a patient's body
• an infection developing after an operation

To prove a medical negligence claim your solicitor needs evidence of each of the below:

• Duty, which is a duty of care owed by the medical professional to the patient
• dereliction, which is purposeful or accidental failure to meet the right care standards
• direct cause or causation, which is the action or lack of  carried out by the medical professional that caused the injury, such as misdiagnosis
• damages or loss, which is the impact the injury has on the patient's life such as financial, physical and psychological impacts

When you make a medical negligence claim and are successful you will be awarded damages which help compensate you for your pain, suffering and loss.

How many medical negligence claims go to court?

You may be relieved to hear that it is unusual for a medical negligence claim to go to court. This year (1 April 2022-31 March 2023) 80% of clinical claims were settled without entering court proceedings. This is the highest-ever volume achieved and compares to 77% in 2021/22. This is done by avoiding litigation where possible and choosing other ways to resolve the medical negligence claim. For example:

• mediation
• resolution meetings

Keeping medical negligence claims out of court saves time and money. This means that you get a result of your medical negligence claim sooner. Here, at National Accident Helpline, only 5% of our personal injury claims require court proceedings.  

Why do some cases go to court?

Although medical negligence claims, like other personal injury claims, often do not go to court, some cases will. One reason could be that negotiations between you and the healthcare provider or professional fail. This can also occur if the other party refuses to accept liability. Therefore, the medical negligence claim goes to court for a judge to decide liability and damages. Sometimes a medical negligence claim will go to court because your solicitor thinks you are owed some money before the final compensation arrives which is an interim payment. 

However, even if you get a court date for your claim, it does not mean that settlement is not possible before this. If it is, you won't need to go to court as planned. 

If you do need to go to court, your legal team will support you throughout to help you feel comfortable and confident about it.

How long does a medical negligence claim take?

Depending on your case circumstances, your claim could take anywhere between a few months or a few years to settle. There is no set time for the claims process for medical negligence compensation claims. There will be different circumstances surrounding medical negligence claims which can affect the time a claim may take. Another factor that counts for the time taken to complete a medical negligence claim is whether or not the party you claim against admits liability or not. This is a major factor affecting the time taken for a medical negligence claim. 

The time taken to process a medical negligence claim also varies between an NHS medical negligence claim and a private medical negligence claim. A private claim tends to take longer. An NHS claim is against the institution but for a private claim it is against the individual medical professional and their professional indemnity (PI) insurer.

It is always important to note that there is a timeline for making a medical negligence claim. Like other personal injury claims, you have three years from when the medical negligence occurred or when you got a diagnosis. This will depend on which occurred first.