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Posted on 9th November 2017

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Bringing a compensation claim for medical negligence isn’t as simple as you may think, there are some things to consider first. Here is a short pointer as to the steps a solicitor will take when assessing your potential clinical negligence claim.

Step 1




The Limitation Act 1980 is an act of parliament which was put in place to establish time limits within which legal action may be taken for a breach of the law.

Very briefly, the time limit for bringing a compensation claim for clinical negligence or personal injury is 3 years from the date of assumed knowledge. Assumed knowledge is an important factor in this area of Tort Law. There are however exceptions to the rule.

Exception 1

If the person wishing to bring a claim for compensation is under the age of 18, they are classed as a minor. In this case, they (or their family) have 3 years from the date of the minor’s 18th birthday to bring a claim.

Exception 2

If the person wishing to bring a compensation claim lacks “mental capacity” there is no time limit.

By mental capacity, it means that the person claiming cannot manage their own money or bank accounts, they have to have carers help them with their basic needs such as hygiene or cooking and cleaning, or they cannot live independently.

Step 2

Breach of Duty

Breach of Duty

For a compensation claim to be successful, there has to have been a breach of duty. This means that a person dealing with the health of others did not follow recognised procedures or failed to do their job properly.

The difficulty with breach of duty is that there is a range of an acceptable standards which goes from Excellent to ok and from ok to substandard. So to help explain this a little further:

A dentist may break a tooth when trying to extract it. If the dentist advises the patient of the breakage and refers the patient for surgery to remove the broken root, the standard of care may be rated as ok rather than excellent but negligence would be hard to prove.

On the other hand, if the patient hadn’t been informed of the broken tooth and referral hadn’t been made, the standard of care given to the patient could be classed as substandard.

Step 3



In a compensation claim, it has to be proven that a breach of duty caused an injury that could have been avoided.

Again by way of an example to help illustrate this:

If an emergency caesarean section was performed and during that surgical procedure a woman’s bladder was cut, causation can be proved. Remember there would need to be a breach of duty first though for a claim to be successful.

Taking into consideration the three steps, here is a little scenario to have a think about

3 months ago, a patient went to hospital because they had to have routine surgery to repair a hernia. Whilst in surgery the surgeon was called away from theatre and a final year medical student was told to finish the procedure.

Whilst the medical student was finishing the procedure, the patient’s bladder was cut into but the cut was not recognised at the time. The student closed the surgical site and the patient sent back to the recovery ward to recoup. Later the patient became unwell and suffered sepsis as a result of the bladder leak.

  • Limitation would be satisfied at step 1 because
    • The incident happened 3 months ago
  • Breach of duty would be satisfied at step 2 because
    • The student should not have performed the procedure
  • Causation would be satisfied at step 3 because
    • The cut to the bladder should not have happened but it should also have been recognised. Sepsis could have been avoided if the breach of duty and the cut to the bladder hadn’t happened.


Interesting fact bout the law surrounding compensation claims

The law surrounding clinical negligence is called Tort Law. Tort Law in negligence terms, outlines that people have responsibilities to each other and it enables the law to provide compensation in the form of money to people who have been harmed by someone failing to meet those responsibilities.

Tort Law implies that people have a duty of care towards others such as Doctors towards their patients or care home staff to their residents.

Drivers have responsibilities to other drivers or pedestrians and could be prosecuted under Tort Law if they cause injury whilst driving dangerously.

Further Information