Posted by Daniel Brito, managing director of Legal Futures Associate National Claims
Brito: Too many firms apply a one-size-fits-all approach to limitation
Medical negligence claims are some of the most emotionally charged and complex cases a solicitor can manage. The consequences of getting it wrong are high, not just for the claimant, but for a legal firm’s reputation and profitability.
That’s why it’s so important to spot the red flags early.
National Claims is on the frontline of medical negligence enquiries and supports countless claimants on a daily basis. Our approach to claims management doesn’t just give us an expert view of what makes a viable claim, but where law firms often miss out.
To help firms protect resources and strengthen pipelines, we’ve compiled five of the most overlooked red flags in medical negligence cases, and how claims partners can help solicitors secure even more wins.
Misjudging limitation periods
Time is critical in any case but in medical negligence, it can make or break a claim. Typically, claimants have three years from the date of awareness of the negligence to bring a claim. But that trigger point can vary, and failing to properly assess it is one of the most common red flags we see.
Too many firms apply a one-size-fits-all approach, refusing cases with less than six months to go before expiry when in fact, those cases could still be strong contenders.
The date of awareness isn’t always a fixed date. It can fall under one of three categories:
- Actual knowledge – when the claimant clearly understands what happened and who’s responsible;
- Implied knowledge – when they realise something may have gone wrong, even if they haven’t confirmed it; or
- Constructive knowledge – when they had enough information to reasonably begin questioning the care they received.
Each of these can trigger the three-year limitation period, so understanding the distinction and how to apply it is vital.
We see viable cases rejected too quickly simply because the limitation period appears tight. But cases with limited time left aren’t automatically lost. With the right evidence and rationale, courts can grant extensions.
These aren’t miracle outcomes. They’re the result of understanding how limitation works and what evidence supports a request to extend it. When applying for an extension, the court will consider:
- The length and reason for the delay;
- The effect of the delay on the strength of the evidence;
- The conduct of both parties; and
- The balance of prejudice to both claimant and defendant.
The red flag isn’t the short timeline, it’s refusing a claim without reviewing whether an extension is justified or whether the claim is strong enough to pursue. A proactive claims partner can spot these cases, escalate them for urgent review, and help firms act quickly to preserve them.
Unknowingly filtering out eligible claims
One of the most consistent (and frustrating) red flags we see is good claims being delayed, or even lost, because the first person a client speaks to at a law firm simply doesn’t understand what a good medical negligence case looks like.
It’s not unusual for first response teams to only collect initial details, without any legal training or understanding of the nuances behind a potential medical negligence claim, for example recognising what would be deemed the date of acknowledgement based on the constructive, implied and actual criteria.
When they don’t recognise the clinical or procedural failure, they often tell a claimant they don’t have a case, when in fact they might.
We often follow up with firms to explain why we believe a particular case has merit, referencing similar rulings and offering our findings on what makes individual claims winners. We’ve seen many strong claims revived after our input, highlighting the importance of a second review and working together to support as many claimants as possible.
The red flag isn’t inexperience itself, it’s a process that doesn’t allow for a second layer of triage from an experienced partner. This is where a knowledgeable claims management company can make all the difference.
By pre-vetting claims and advocating for them when appropriate, fewer valid claims fall through the cracks.
Failing to establish causation early
Causation is everything in medical negligence but it’s also where many firms slip up. One of the most common red flags we see is early-stage vetting that fails to determine whether the alleged act, or failure to act, directly caused the harm being claimed.
This isn’t about demanding clinical records upfront. It’s about knowing what to ask. Did a delay in diagnosis directly impact the outcome? Was the surgeon’s decision a recognised risk or a clear breach of duty? Could the harm have been avoided with reasonable care?
There’s a big difference between known risks and avoidable harm. Some complications are unfortunately part of the procedure but others are avoidable and amount to direct neglect. That’s where a claim becomes viable.
It’s our job to identify the negligent act, the breach of duty and the harm directly caused as a result. We train our team to probe beneath surface-level symptoms and spot the difference between bad outcomes and bad practice. We seek clarity, challenge inconsistencies, and filter out claims that won’t meet the legal threshold before they ever reach our partners’ desk.
Because, without clear causation, there’s no case. But with it? You’ve got a strong claim ready to progress.
Missing the questions that turn a ‘maybe’ into a winner
Some of the strongest medical negligence cases aren’t obvious at first glance. Claimants often don’t know what constitutes negligence, they only know something went wrong. That’s why the right questions make all the difference.
One of the most overlooked red flags is a superficial intake process that fails to ask the deeper questions that uncover winning cases. For example, asking whether a client received a duty of candour letter, if there was a ‘never event’, or whether a ‘serious untoward incident’ was reported can quickly shift a case from uncertain to high probability.
These are all major indicators that something serious went wrong and that the provider knows it.
Our team is trained to scratch beneath the surface. We ask whether the claimant has heard of disciplinary action against the professional involved, whether they’ve had follow-up letters acknowledging failings, or whether any part of their treatment was reviewed internally. Many clients don’t realise these details are significant, or even remember to mention them, unless prompted.
The red flag here isn’t the claimant’s lack of clarity; it’s the firm’s failure to dig deeper. A good claims partner will know what to ask, when to probe and how to turn anecdotal experiences into viable legal claims. It’s not just about identifying what happened, it’s about understanding what matters.
Only hunting for whales
High-value cases might be exciting but chasing them exclusively is a dangerous strategy.
We see too many firms build their pipeline around a handful of ‘whale’ cases with projected six-figure settlements. While those cases have value, they are also complex, slow to progress and vulnerable to delays. That creates serious risk for your firm’s cash flow, operations, and resourcing.
A more balanced portfolio, one that includes a mix of quicker wins and long-term claims, is key to maintaining momentum and growing revenue consistently. We work with firms to provide both. Our pipeline includes high-value cases and claims likely to settle more quickly, helping firms smooth out income across the year.
The red flag? Over-reliance on a few big cases at the expense of sustainable workflow. The reality is, you’d rather have 20 well-vetted cases settling every month than wait months for one whale to land.
Our job isn’t just to pass leads on, it’s to support our partners by doing the heavy lifting up front. Because when the right claims get through, everyone wins.
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