Can I make a claim?
A Claimant has three years in which to claim for negligence, nuisance or breach of duty where that claim consists of or includes a claim for personal injury.
The 3 years start from either the date on which the cause of action occurred, for example the accident date, or as in the vast majority of medical negligence cases, it starts from the Claimant's date of knowledge.
What is the claimant's date of knowledge?
The claimant's date of knowledge starts from the date that the Claimant knew, or ought to have known, that they had suffered as a result of somebody else's negligence or breach of duty and that they could claim for this.
Example: If an operation was performed negligently on the 1st April 2008 but the patient did not discover that their on-going problems were as a result of the negligent operation until 1st April 2010, some two years later, then the Claimant would still be able to claim as long as they did so before 31st March 2013.
What is 'causation' & how does it affect my claim?
Causation is showing that the damage a Claimant has suffered is as a result of negligence in their care.
In medical negligence cases this can understandably be difficult to prove as a Claimant is usually already in hospital if they are unwell and therefore it must be separated into what the initial complaint was and what additional damage the Claimant has suffered.
There is also a causation issue in that if the damage to the claimant would have happened anyway then the Claimant will not have a claim as it cannot be shown that the negligence suffered contributed to the damage that the Claimant suffered. The best way to explain this is with an example.
Example: If a Claimant arrived at hospital having been poisoned and the hospital negligently failed to diagnose this and the Claimant passed away as a result, there would be no claim as the Claimant would have passed away from the poisoning as there would have been nothing the hospital could have done, even if they had diagnosed the problem correctly.
This is a difficult concept to understand and if you are in any doubt as to whether or not you have a claim call us and we can discuss your claim in more depth.
What is the procedure for making a claim?
The procedure for making a claim for medical negligence is different to that of a road traffic accident. When a claim is initiated a pre-letter of claim must be sent to request the Claimant's medical records and these records are asked for within 40 days.
These records must then be reviewed and the claim assessed and if the claim is strong enough, a formal letter of claim is then sent to the Defendant. The Defendant must then acknowledge the claim within 21 days and thereafter has 3 months to investigate the claim.
Written by Jenna Gielty- Solicitor
If you've had a personal injury or need business legal advice call Hattons local team for FREE initial advice on 0800 298 9690 or visit www.hattonslaw.com