Funding Medical Negligence Claims

Funding Your Claim

Obtaining funding when making clinical negligence claims can be more complex than in other areas of the law, due to the need for expert opinion. As any breach of duty must be judged according to the standard of a reasonably competent medical professional, fewer claims are conceded at the initial stage, and this can lead to costs mounting as the case continues. This can be true even if the claim does not make it to court. It is therefore vital to have a well worked out plan when it comes to funding medical negligence claims.

The Basic Costs Structure

Firstly, it is important to understand that in the majority of cases in English law, the ‘loser pays’ principle is followed. That is to say that the loser of a contested claim pays not only their own costs and any compensation, but also the costs of the successful party. For this reason, it is extremely important that you are confident of winning and that you have a plan to follow in the event that you do not succeed. Unless you are extremely wealthy, you will need the assistance of a third party to fund your claim.

Legal Aid

At the time of writing, legal aid is being phased out as a method of funding medical negligence claims. From 2015, it is likely that legal aid will only be available for claims regarding negligence which has caused disability to an unborn or recently born child. However, if you can find a firm of solicitors who are accredited by the Legal Services Commission to take on legal aid work, you may still be able to claim via this route for now. In order to do so, your solicitor will have to assess the claim as being likely to succeed, and funding permission will have to be granted.

‘No Win, No Fee’ Agreements

The abolition of legal aid for medical negligence claims has been justified by the promotion of conditional fee agreements, more popularly known as ‘no win, no fee’ agreements. These can be an effective method of funding your claim, but you must be very careful to ensure that the specific agreement you have been offered covers all of your costs. Many CFAs ensure that you will not pay the legal fees associated with the work of your solicitor, but leave you open to very significant costs due to the fees charged by medical experts and barristers.

Obtaining Legal Expenses Insurance

If you cannot obtain legal aid or a suitable CFA, you will need to make certain that you are covered by legal expenses insurance. If your main insurance policy does not already cover this, you may be lucky enough to be able to claim through your trade union or professional association membership. If not, you will have to purchase ‘after the event’ insurance, which can be expensive. The premiums, however, are likely to be less problematic than being exposed to the other side’s cost in the event of an unsuccessful claim.

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