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How do I fund a medical negligence claim?
When embarking upon making a medical negligence claim a lot of people’s primary concern is – how will I pay for my legal fees?
There is however no need to worry as there are a number of measures in place to protect you from having to pay either your own, or your defendant’s costs.
What are the costs involved when making a claim?
The costs involved when making a medical negligence claim vary depending on the individual circumstances of the case, including:
- The length of time it takes for the case to conclude.
- The value of the claim.
- The number of medical experts required to analyse your case and their specialism.
- If the claim is defended by the medical professional and/or hospital/medical practice involved.
- How long the trial will go on for – should the claim end up in court.
Will I need to pay the defendant’s costs?
Qualified One-way Cost Shifting (QOCS)
Qualified One-way Cost Shifting (QOCS) was introduced in April 2013, in order to protect claimants from needing to pay the defendant’s costs if their claim were to fail. QOCS is applied to all medical negligence cases, which means that the defendant will be liable to pay your legal costs if your claim is successful.
On the other hand if your claim is unsuccessful, the defendant will not be able to recover costs from you. The defendant may however be able to recover costs from you in the following exceptions:
- You decline a Part 36 settlement offer from your opponent, but you later agree, or are awarded less by the judge at trial. A Part 36 offer is an offer made by the defendant, (or sometimes the claimant) in order to settle the claim without having to go to court.
- Your claim is struck out.
- An interim costs order is made against you by the court.
What are the different funding options?
Typically your solicitor will start the process by assessing your case on a free, no-obligation basis. If they believe that your case is eligible, they will talk you through the claims process and the different options for funding available to you. These include:
A No Win, No Fee Agreement
Most medical negligence claims are handled on a ‘No Win, No Fee’ basis, otherwise known as a ‘no win, no fee agreement’ or ‘conditional fee agreement’. This is an arrangement between you (the client) and your solicitor when making a legal claim. This means that if your claim is unsuccessful, you are not liable to pay for the legal fees. This is so long as you have taken out an ATE insurance policy – which will be explained to you at the start of the process.
The ATE (After the Event) insurance policy is taken out to protect you from having to pay your opponents costs, along with any disbursements you have incurred throughout the claims process.
You will only pay legal fees if your claim is successful, which is typically a percentage of the compensation amount obtained. The percentage is usually around 25% and is also known as a ‘success fee’.
Legal Expenses Insurance
Legal expenses insurance, also known as Before the Event (BTE) insurance can sometimes be used to help fund your claim. It is however important to note that not all solicitors will be covered by your insurance policy. Many insurers will insist that you pick from their panel of solicitors.
Your solicitor will review the details of your policy and advise you on the eligibility of you funding your claim through legal expenses insurance.
Legal aid for medical negligence claims was abolished by the government in April 2013. Legal aid is however still available to those making a claim on the behalf of a child who has suffered a severe brain injury during pregnancy/childbirth or shortly after.
How do I make a legal aid claim?
If your claim is eligible for legal aid your solicitor will help you through the process of making the application:
- True solicitors will help you to complete the application forms provided by the Legal Aid Agency.
- We will send the forms back to you to check over, approve and sign.
- The completed application will then be sent to the Legal Aid Agency to decide if they will grant the funding for your claim.
- The Legal Aid Agency aim to respond to all applications within 20 days of receiving them.
- As soon as the Legal Aid Agency confirms the outcome of the application, we will inform you of their decision and allow you to decide if you would like to continue with your claim.
- If your application for legal aid is declined, we will discuss the other funding options available to you.
How much compensation will I get for medical negligence?
The amount of compensation that you could receive for a medical negligence claim is dependent on a number of different factors, including:
- The extent of your physical pain and suffering
- The severity of your injuries or illness
- Medical and care expenses incurred as a result of the negligent treatment
- Current and future income loss
- Any home or car adaptations that you have had to make
Your solicitor will take all of the above into consideration when quantifying your claim.