Guidance in Clinical (Medical) Negligence Claims

The law regularly changes, and the following notes are intended for general guidance only. They are neither comprehensive nor necessarily applicable to every claim, and should not be viewed as an alternative to taking professional legal advice.


Clinical negligence, formerly known as medical negligence, is the process by which a patient takes his or her medical attendants to a civil court for compensation.

In order for negligence to be proven a claimant (usually the patient), must show that the healthcare professional owed a duty of care to the patient, that the healthcare professional was negligent in his or her management, and also that the patient suffered harm as a result. The claimant has to succeed on both these ‘tests’ to obtain compensation.

General Damages

The value of compensation due will then be assessed by reference to the medical evidence obtained in support of the claim and on the strength of decided case law and judicial guidelines. If, for example, you were injured in an accident and the subsequent treatment of your injuries was negligent, you will only be able to claim (as part of the clinical negligence claim) compensation for the further harm which you have suffered as a result of this negligence and not for the original injuries.

The award will be for ‘pain, suffering and loss of amenity’, and as such cannot be readily measured in monetary terms. When the value of a head of compensation has to be assessed in this manner it is referred to as ‘general’ damages.

Special Damages

When a loss can be quantified, or has a specific value, this is referred to as an item of ‘special’ damage. Again, you will only be able to claim (as part of the clinical negligence claim) for special damages which have been incurred as a direct result of the healthcare professional’s negligence. Some examples are set out below, together with a brief guide in italics as to the type of evidence you will need to provide as proof or evidence of the loss, or what may be agreed without evidence (so long as that loss has actually been sustained). You should keep a record of all expenses you wish to claim for and save all relevant documentation in support:

Treatment costs:

Fees / Receipts / Invoices

You may be able to recover the cost of any treatment which is necessary to “put things right” on a private basis, but again only if this is required because of the negligence of the healthcare professional and you show that the treatment has been recommended by your current medical practitioner.

Travel costs associated with the incident:

Receipts are recommended, but the healthcare professional’s insurers or other representatives may well agree a round sum of around £25.00 - £50.00, if this is consistent with the amount you actually have travelled because of the incident.

Fuel costs:

These will generally be agreed at around 35 pence per mile. You will need to keep a record of mileage travelled and what this was for.

Only travel costs associated with the claim will be considered and you will not be paid where there is a duplication of claims.

Postage/phone calls/miscellaneous costs associated with the incident:

These may well be agreed at around £20.00. You will need to produce strong evidence to persuade an insurer or an eventual court to pay more.

If applicable, medication, including prescriptions:

These may be agreed at around £10.00 - £20.00, if you did in fact take medication which was necessary because of the further harm suffered. You will need to produce specific proof (i.e. by way of receipts, supported by the medical evidence) if you wish to claim a higher figure.

Loss of earnings:

If you have suffered a short-term loss of earnings, the conventional way to calculate your net loss is by obtaining an average figure from pay-slips for thirteen weeks prior to the incident, if employed, or we will need to request a report or letter from your accountant, if self-employed.

If you are off work for a significant length of time we may well need to investigate further, review your income over a longer period of time and potentially recover your personal accounts and/or other documentation and evidence in support of this head of claim.

If you are being paid by your employers while you are off work they may wish to recover their outlay, but this must be provided for in your contract of employment.

Lost holiday:

It can be convenient to claim lost holidays at the same daily rate as your income, for example when you have to take time off as holiday, while you recuperate from the further harm suffered. If you have actually missed out on taking a holiday because of the incident, then please provide documentary evidence of the cost of the holiday, so that we can try to recover that lost expense on your behalf.


The time and amount we can recover for care provided by members of your family will depend on the extent of your further injuries and the degree of care reasonably required. In very many cases there will be no claim for care and assistance.

Any care claim, and the amount of assistance, will need to be supported by the medico-legal expert.

The courts tend to apply set hourly rates with a 25% reduction when care is provided by a family member or friends, to allow for the ‘gratuitous’ nature of that assistance (primarily because tax will not be paid on the sums received).

You should keep a diary record of the type of assistance provided, the number of hours spent daily, who provided the care and over what periods the care was needed.

Please bear in mind that any claim for care must be realistic and the number of hours claimed must accurately represent what has been done.

In more serious cases, it can be helpful to present a care claim in three sections, to cover an initial period of significant symptoms and higher dependency, followed by a second and third period, as the recovery continues and needs reduce.