The Government has announced a change to the “discount rate” for clinical negligence claimants
Why? Because we believe the most important person in a legal team isn’t the lawyer, it’s you. So we give you more than other law firms. More expertise. More depth. More clarity. Our job is to listen and understand, and then use our expertise to find the best solution for you.
You’ll find we are efficient, with a team based approach and a relentless focus on quality.
In pursuing a clinical negligence claim, litigation may be required to reach a favourable outcome. Our team can help determine the best strategy, whether this is through skilful negotiations or aggressive advocacy in litigation.
Reaching a successful outcome requires not only expert legal knowledge but also an excellent understanding of how the NHS and medical defence organisations arrive at settlement decisions. Our team of specialist clinical negligence lawyers has been hand picked for their specific skills and technical competence and includes lawyers qualified in medicine, dentistry, nursing and midwifery, with practical experience of working in hospitals.
This valuable experience and inside knowledge means we can provide you with the strongest possible representation.
Many clients will be concerned about how their claim will be funded. There are a number of options available to you and we can advise which is the best suited to your claim.
You may have legal expenses insurance attached to your home and contents insurance or some other policy. This type of cover may allow you to pursue a clinical negligence claim.
CFAs are often termed ‘no win no fee’ and can help to fund your medical negligence claim. If we are successful on your behalf, the majority of our costs will be paid by your opponent. But there are still some items which you will be responsible for from the compensation you recover. These include part of any insurance premium and our success fee, together with any shortfall between costs claimed from your opponent and costs recovered. The vast majority of damages you recover will be protected and untouched by these payments. If your claim is not successful, you will not be charged anything.
If a CFA cannot be offered on day one as the merits of your case are unclear, we may offer a privately paying arrangement which can be entered into to include a fixed fee retainer. This will be limited to carrying out an initial investigation before offering you an alternative method of funding.
Legal Aid is only available in the case of a child with a neurological injury resulting in severe disability, which has arisen during pregnancy, child birth or in the eight week postnatal period. It is also subject to a means and merits test prior to award
Going into hospital you place your trust in the Doctors, Nurses and other Health Professionals who treat you. If something goes wrong it can be devastating for you and your family. Just because the outcome of your medical treatment is poor or unsatisfactory however does not mean automatically that someone has been negligent. There are always some unavoidable risks of any form of treatment, which your doctor will no doubt have explained to you.
If something has gone wrong however you will inevitably want to know why it has happened and perhaps more importantly, whether the mistakes that were made in your treatment and care were avoidable.
Medical negligence cases arise in circumstances where something has gone wrong which was avoidable. These are the situations where there has been a mistake made and the doctors, nurses and other healthcare professionals have failed in their duty to provide an appropriate level of care or skill which has resulted in injury loss and damage.
Medical negligence covers both “acts” and “omissions” in other words situations not only where something wrong has been done [for example, a surgical error] but also those situations where there has been a failure to do something that should have been done [for example, a failure to carry out an emergency cesarean section in labour where there was clear evidence of fetal distress].
The law provides that to succeed in a Medical negligence claim an injured party must prove that:-
There can be situations where a hospital has been negligent but that negligence did not actually result in an injury then, in these circumstances, inevitably there is no claim. There has to be a direct causative and logical link between the “breach of duty” and the injury sustained and it is also essential that the injury had no other unrelated cause or origin. In certain circumstances a material contribution argument can be raised where there are alternative or competing causes. Previously the law required you to show that but for the Defendants negligence the injury would not have been sustained. That is no longer always the case.
It is up to the injured claimant to make their case. The standard of proof is the balance of probability (i.e. more likely than not).
It is well established that doctors and other medical professionals owe a duty of care to all of their patients. That duty of care is not absolute. There are no cast iron guarantees in medical treatment. Medicine is just as much art as science. The duty is discharged by doing what is reasonable in all the circumstances.
So how does anyone know if medical professionals have discharged their duty of care, acted reasonably and provided acceptable treatment?
The ultimate determination of what is acceptable in terms of standards of care lies with the Courts, who will be guided by the opinion of independent, specialist medical experts. Those experts will be asked to look at the medical records and any other evidence available and determine whether or not in their opinion an acceptable standard of care was provided.
As stated above “causation” is an important issue. There has to be a direct link between the sub-standard care and the injury sustained.
There are two limbs to this test. The first is to look at what actually did happen and the second is to ask what would have happened if there had been no negligence (in other words, different medical treatment provided). The negligence is causative if it can be shown that there is a material difference in the two outcomes.
The other important issue as previously stated is foreseeability. In negligence, a Claimant can only recover for injuries which are reasonably foreseeable.
Medical negligence claims can be brought against general practitioners (GPs), out-of-hours GP services, health visitors, osteopaths, physiotherapists, dentists, midwifes or any other healthcare professional. Claims cover all medical treatment and care and are not restricted to hospitals. Some claims will be against the NHS, which includes Clinical Commissioning Groups and hospital trusts. Other claims will be against private hospitals and private doctors.
It is important to establish at the outset who the opponent will be. A claim made against a GP will be addressed to them personally. GPs carry professional indemnity insurance to cover these situations.
If negligence has taken place in an NHS hospital, it is the trust itself and not the individual doctor or nurse which will be held liable if your claim is successful.
Where medical treatment is provided by a private consultant, claims will be made against the individual who will be insured for circumstances like this. Where a member of staff is employed directly, it will be the hospital which is responsible for the claim.
Medical negligence is a complex area of the law. It demands real expertise on the part of your legal advisers in identifying the issues and undertaking a forensic examination of the evidence. It is not enough to simply say I have been in hospital for an operation and have had a bad outcome. In medical cases, inevitably there are always unavoidable risks of treatment and a successful outcome cannot be guaranteed.
As a firm with real expertise in the field of medical negligence inevitably we receive a large number of enquiries from people who believe they may well have a claim. We utilise our expertise to screen claims that are referred to us and identify those we believe have real prospects of success and those which do not.
If we believe that your claim has real prospects of success we will offer you an appointment either on the telephone or in person, in your home or at our offices to discuss your claim.
The purpose of the meeting will be to discuss with you the circumstances surrounding your medical treatment and care. We will ask you about your medical history, we will discuss the treatment received and outcome and seek to ascertain what, in your opinion, went wrong and why. We will also need to discuss and understand your injuries.
We will want to understand the implications of your injuries on your day to day living activities. We will discuss with you the alternatives to litigation and the use of the NHS complaints procedure.
We will consider and advise on any limitation issues affecting your claim and, importantly, the likely limitation date. We will also discuss with you the best method of funding your claim and the alternatives available to you.
We will also seek to ascertain at that first meeting whether you are facing any immediate difficulties with regard to ongoing medical treatment, in particular in securing community care and support from the Local Authority or medical treatment form the National Health Service and generally coping with the aftermath of your medical treatment and injuries. We may discuss the availability of welfare benefits. In the case of a child we may offer advice and support if required in relation to education and other practical issues.
Following that first meeting we will of course write to you to confirm any advice given and will let you know if we feel you have a claim and, if so, the prospects of success. We will confirm any advice given in relation to funding options with a view to establishing a formal retainer.
At all times, you are central to the process and the claim itself. You can expect regular updates on progress and, without your input, we can obviously make no progress.
Once an agreement has been reached with regard to our retainer we can start work investigating your claim. Every claim is different and it is important that you appreciate it is not simply a question of following a set series of steps. Depending upon what issues exist in relation to your own case we will investigate accordingly. The following therefore serves to simply provide a rather simplistic overview of the key stages in any claim.
We will as a starting point want to document your version of the events in a formal witness statement. This will be very much a first draft and will only be disclosed to our own expert witnesses to put forward your version of events. We will then request copies of all relevant medical records (to include hospital and General Practitioners records). You will be asked to sign forms of authority authorising disclosure of the records to this firm. Of course, your records are confidential to you and remain so throughout this process. The Data Protection Act 1998 gives all patients the right to see their medical records on payment of a maximum fee of £50. We may at the same time also request copies of any relevant protocols or procedure documents (to include complication rates for a particular clinician, infection control records and so forth) under the Freedom of information Act 2000.
Frequently records will be held in many places and it does therefore take time to obtain copies. The Data Protection Act allows the hospital or medical centre 40 days to deal with such a request and if they fail to do so within this period an application to the court can be made on your behalf. You will need to expect a delay of several months just to get a complete set of medical records.
Once we have your records here we will then collate them, paginate them and prepare a detailed chronology and analysis. If the records are voluminous we will often prepare a “core bundle”.
Once this task is completed we will send a copy set of records to you and a preliminary written report detailing our views on the strengths and weaknesses of your case. We may suggest that we met again to go through the records with you to deal with any issues raised. A more detailed witness statement will be prepared at this time dealing with the medical records as appropriate.
The next step in terms of investigating your claim is to obtain an independent medical expert’s report on the issue of negligence (and if appropriate causation of injury). That expert will be asked whether, on the basis of the records and your own statement, in their opinion there is evidence of a lack of skill or care in relation to the treatment you received which was causative of injury.
It is not unusual for a range of experts to be approached and instructed. Inevitably we will be very much guided by the opinion we receive. If the expert states categorically that they do not feel there is a case to answer it is very unlikely that your case will be taken further. If the opinion we receive is supportive to the continuance of a claim then it is likely that we will take steps to arrange a medical examination of you by further independent medical experts. The purpose of this examination will be to confirm the injuries you have received as a direct result of the matters complained of and the prognosis.
It is important that you should appreciate that medical experts often have long waiting lists. It is however very important to get the right expert on board. You should not be surprised therefore if it takes several months to secure each expert opinion. That report will assist us in valuing your claim and identifying any further areas which require investigation.
You will be provided with written reports at regular intervals. We believe very strongly that it is your claim and we are simply the facilitators of that claim. It is our role to investigate your claim, advise you and to ultimately secure the best possible outcome we can.
At this stage we may assist your damages claim by working on a schedule of your past and future financial losses. As previously advised it may be that further expert evidence will be needed to assist in this process at a later stage where your injuries are severe and have resulted in significant care needs.
In the majority of cases as soon as we have supportive expert evidence and enough information regarding your claim and resulting injuries we will test the strength of that evidence by recommending a conference with a barrister. We regularly work with a number of barristers who specialise in medical negligence claims. Any conference will be attended by you, a representative of this firm and the medical experts. The purpose of the conference will be to review the evidence obtained in relation to your claim with a view to ensuring all necessary investigations have been carried out prior to serving any “letter of claim” or commencing any formal court proceedings.
In any case we are not allowed to simply issue court proceedings without giving your opponent the chance to consider your claim. The law requires us to write to your opponent (the “letter of claim”) to tell them that we are instructed to take forward a claim. We have to tell them what the claim is about, why it is being made, the likely allegations of negligence and to give a preliminary indication of the likely value of your claim. The Defendants are then afforded four months to investigate the claim and provide a written response. The letter of response may admit or deny the claim. It is not unusual for the Defendant’s to offer to pay compensation at this stage and if that is the case we will of course advise you and, if appropriate, endeavour to negotiate a settlement.
If the Defendant’s seek to deny liability or we cannot settle your claim then inevitably the next step will be to issue formal court proceedings.
We will re instruct a Barrister to review the papers relating to your claim to include the letter of response and to finalise a formal statement of your case in a prescribed form. This document will set out in full all of the allegations of negligence that are being made and provide details of your injuries and losses. You will be asked to formally approve this document.
To commence Court proceedings, we will then lodge at court a Claim Form in a prescribed form, a Statement of Case with supporting expert medical evidence in relation to your present condition and prognosis, together with a detailed schedule of your financial losses.
The Defendant then has fourteen days from service of the Statement of Case to file and serve a Defence stating the extent to which matters set out in the Statement of Case or agreed or otherwise. Once again this is a very formal court document. It is common place for the defendants to ask for more time to finalise this. It is not unusual for a period of three months to be requested and either agreed or approved by the court.
As soon as the Defence has been served on us and lodged at Court we will of course provide you with a copy and report to you further.
Your case will then enter a Case Management stage. The Court will fix a case management hearing with a view to controlling the evidence and setting out a timetable for the future conduct of your claim and a costs budget. The Court will also consider the issues identified in the court papers (the statement of case and defence) and give directions as to the scope of the evidence it believes is required to determine the issues arising in your case.
As a starting point the Court will order disclosure of any documents that may be relevant to the issues in your case by requiring the parties to prepare a list of the documents in its possession and allow the other party to inspect those documents and have copies. This will not only include the medical records but also any documents that might exist that support your financial losses, to include receipts for expenditure, details of welfare benefits, DSS medical assessments, employment records and so forth – but many documents remain confidential.
The Court will also order the parties to prepare and exchange formal witness statements. As soon as the witness statements are received, we will, once again, reassess the merits of your claim. We will discuss with you the contents of the witness statements with you served by the Defendants and also with our experts. It may be necessary to have a further meeting with the barrister at this stage. The purpose of this meeting will be to re-evaluate the strength of your case in the light of the witness statements disclosed and documents received from your opponent and in addition so that the expert evidence can be reviewed and finalised in readiness for exchange.
The next step in the court timetable will be exchange of experts reports both in relation to the question of liability and also your present condition and prognosis. The defendants will be entitled to obtain an independent expert’s report in relation to your present condition and prognosis from their own nominated expert. This may be in more than one discipline. You will be required to agree to this and will be paid reasonable travel and subsistence expenses incurred in attending such an examination. Once again as soon as your opponent’s experts’ reports have been received, they will be sent to you and to our experts with a further report setting out our views on the issues raised.
In terms of the expert evidence, generally the court will require the experts from both sides to meet, either face to face or by telephone, in the absence of the parties to discuss the case with a view to producing a formal statement narrowing down the issues for the benefit of the court.
The court will also at the case management hearing direct you to serve an up to date schedule of your financial loss and order the defendants to prepare a counter schedule. Generally, this will be three months after we serve your schedule.
Finally the court may direct that the parties meet to try and resolve the case by way of settlement [this is known as ADR or alternative dispute resolution]. The Court will also fix the trial date or a trial window. We will of course explain and guide you through each and every stage in the process.
If we cannot settle your claim it will be necessary for there to be a trial at Court so that your case can be decided by a judge. At trial your case will be presented by a barrister. Witnesses and medical experts will be called by both sides. It will be necessary for you to give evidence.
Even if your opponent seeks to defend your claim, they can make offers of settlement at any stage during your case. We will let you know if any offers are received. Just because we have placed a certain value on your case does not mean that the Defendants will value your claim at any where near that amount. It is not unusual for the Defendants to offer an arbitrary sum simply to try and ‘buy off’ the claim.
All offers have to be considered very carefully. This is because the Court rules contain a mechanism which can put you at real risk in relation to the recovery and payment of legal costs if you reject an offer and subsequently are awarded at trial a lesser amount than the amount that was offered. This is known as a Part 36 offer. If this happens the Court is likely to make two costs orders. Firstly, it will order your opponent to pay your legal costs up to the deadline for acceptance of your opponent’s offer, but it will then order you to pay their costs from that date up to and including the costs of trial. We will of course provide you with advice in the event that such an offer is made so that you can make an informed decision.
In the majority of cases if your claim is successful at trial you will receive compensation in a lump sum of an amount determined by the court. The court does however have power to order what are known as ‘periodical payments’ which represent payment of an annual sum for some of the compensation that is awarded.
Once the case is over and compensation is awarded then the final stage will be dealing with the legal costs.
There are two particular situations where the Court will retain control over the compensation that has been ordered to be paid. In the case of a child, the compensation will remain in a special account held by the Court until the claimant is 18 or over. The judge can allow some of the money to be paid out straight away, but the bulk will remain in Court.
If the case involves a Claimant who is not considered to be capable of managing their own affairs, perhaps because they have a cognitive or learning disability, then generally any award of compensation will have to be paid over to the Court of Protection who will invest and manage the money on their behalf. This will involve the appointment of a deputy. Once again, we can advise and assist in relation to this.
On the question of costs the court will fix at the case management hearing a costs budget. As previously advised, if your claim is successful, the defendants will be ordered to pay a substantial contribution towards your legal costs and expenses. The precise amount that they will pay will be decided at a later hearing before a costs judge unless an agreement can be reached with your opponent in the meantime. There will inevitably be a shortfall which you will have to pay from your compensation.
It is impossible to accurately predict the length of time that your claim will take from start to finish. Even the simplest of medical negligence claims can take anything up to eighteen months to conclude. Complex cases will take far longer.
The law does impose time limits within which a Claimant must bring any claim. This is known as the “limitation period”.
In a medical negligence claim a party will generally have three years from the date of the negligent treatment to commence court proceedings. If a Claim form is not issued at court within that three year period then the claim will be “statute barred” and cannot be brought at a later date. It is imperative, therefore, that the limitation date is carefully noted.
There are some limited exceptions to the three year rule. If an injured party can show that they did not have the requisite knowledge to bring a claim within the three year period it may, in certain circumstances, be possible to establish a later date for limitation purposes.
It is not enough however to simply say “I did not know I had a claim until now”. There are strict rules. The courts will seek to establish when or on what date it is reasonable to assume that the claimant was aware:
Other exceptions to the three year rule include:
The Court does also have a general discretion to allow claims to proceed if they fall outside of the appropriate limitation period but this is rarely exercised.
Any one who has been injured as a result of medical negligence can claim compensation [often referred to as damages].
The starting point for assessing the value of your injuries in monetary terms is medical evidence. It will generally be necessary for an independent medical examination to be arranged with a specialist medical expert who will have access to your medical records and will see you with a view to providing a detailed report. That report will document precisely what injury you have sustained and thereafter it will be possible to estimate in broad terms the level of compensation that may be awarded in your case. The courts are assisted by awards made in previous cases for similar injuries and by the Judicial Studies Board Guidelines.
In addition to general damages you will be entitled you claim for any financial expanses that you have incurred as a result of the negligence. This can include, amongst other things, travelling expenses incurred attending hospital appointments, prescription charges, additional heating costs, loss of earnings to give just a few examples. You are strongly advised to keep a record of all expenses that you feel may have been incurred and receipts or other documentary evidence if at all possible.
Some people find it helpful to keep a diary of appointments into which they can list invoices for expenses incurred from the injury.
You will be entitled, in addition, to claim for any future financial losses that you are likely to incur as a result of the medical negligence. This can include future loss of earnings, loss of pension rights, care costs, aids and equipment, transport costs, the cost of private medical treatment, the cost of physiotherapy, accommodation expenses just to give a few examples. Where needs are complex it will be necessary to instruct experts to carry out a formal assessment and provide costings.
In catastrophic injury cases where future losses are likely to be significant then the Court may insist that some of the future losses should be paid in the form of annual or other periodic payments rather than a single lump sum to ensure the money does not run out.
It is impossible to accurately predict the length of time that your claim will take from start to finish. Even the simplest of medical negligence claims can take anything up to eighteen months to conclude. Complex cases will take far longer.
The following sets out the preliminary of investigative stages of your claim:
To take your instructions, provide initial advice and where appropriate prepare a preliminary witness statement.
Allow 2 weeks
This will include GP and hospital notes.
Allow 2-3 months
Once we have your notes, we will collate and paginate them and prepare a detailed chronology and analysis of your records.
Allow 4-6 weeks
A written report will detail our views.
Allow 2 weeks
We may suggest meeting to go through the records with you and any issues arising, with a view to preparing a detailed witness statement.
Allow 2 weeks
We may at this stage start work on a preliminary schedule of your financial losses both past and future to assist in relation to your damages claim. Further expert evidence may be needed to assist in this process.
Allow 4 weeks
We will get the opinion of independent medical experts as to whether or not the care you received was substandard. We may also need to arrange for you to be independently examined.
Allow 6-12 months
A copy of any medical reports received will be sent to you with a detailed report setting out our views.
Allow 2 weeks
In the majority of cases as soon as we have supportive expert evidence and enough information regarding your claim and resulting injuries, we will test the strength of that evidence by recommending a meeting (conference) with a barrister. Any conference will be attended by you and the medical experts.
Allow 3 months
We are not allowed to issue court proceedings without giving your opponent the chance to consider your claim. The law requires us to write to your opponent to tell them that we are instructed to take forward a claim. We have to explain what your claim is about, why it is being made and the likely allegations of negligence, giving a preliminary indication of the value of your claim.
Allow 4 weeks
The defendant’s are obliged to respond within four months and either admit the claim and offer compensation or deny liability, necessitating court action
Allow 4 months
We have an expert team of medical negligence solicitors, all of whom have extensive experience and each also has specific specialities.
During the continuance of your claim if you or your carers, are having difficulty accessing health or social care services, then we can help. We provide a whole range of services designed to meet the needs of vulnerable people, including children, the disabled, the elderly and their carers. We can help you gain access to all available NHS and social care services to ensure you have the support and assistance you need, whether you live at home or in a residential or nursing home.
Whatever difficulties you face, perhaps resulting from an accident, disability or illness, we will act on your behalf with your local health trust or local authority to obtain the best possible solution for you. As well as helping you cope with the day-to-day practicalities, we will also work to ensure we maximise the quality of your daily life.
Our services include support and assistance in relation to:
With us, you can rest assured you have the support of professional legal expertise and assistance, giving you the practical support and peace of mind you need.
Like many of our clients, your child might have complex special educational needs and, for any number of reasons, you might be struggling to access the best educational provision for them. We know that these situations can be difficult and often upsetting. You will want to be reassured that you have options and that a good solution can be found.
Our education team specialises in this niche area of the law and has a reputation for getting results quickly, efficiently and cost-effectively. You can be sure that we will listen and take time to understand your child’s needs from all angles. We then work with you to assess the options, set goals and develop a strategy to achieve them.
We also help children who may not have special educational needs, but are faced with other issues, such as securing a place at their chosen school, or exclusion. Whether you are educating your child at a state school or privately, we will provide you and your family with the necessary advice and support.
Although we act only for parents and families, some of our team have previously represented public sector organisations. This means we have valuable insight into how such bodies reach decisions – and how best we can challenge them on your behalf.
With our experience and support, you and your family can be confident that we will resolve the issues you face – and that we will achieve the best possible outcome.
The Court of Protection is in place to help individuals who are mentally incapable of making their own choices in relation to health, welfare, property or money. These decision-making powers can also be appointed to another individual by the COP, who will be known as a Deputy. This may take place if decisions need to be made on an ongoing basis.
A deputy can be appointed for ‘property and finances’ or ‘health and welfare’ decisions or both. It is less common for the court to appoint a deputy to make health and welfare decisions.
A property and finances deputy will be appointed to look after a person’s financial affairs if the individual is deemed incapable of making decisions about their financial matters themselves. These duties, amongst others, will usually include: the completion of tax returns, implementing and monitoring investments, managing bills, assessing the entitlement to Social Security Benefits, regularly reviewing income and expenditure budgets and the preparation of Statutory Wills.
A deputy can be:
It may be considered appropriate for a professional such as a Solicitor to be appointed, particularly if complex decisions need to be made or there are likely to be large sums of money to manage.
The application to appoint a professional deputy should be made if it is felt that the claimant and their family would benefit from the assistance of a professional deputy.
The process to appoint a deputy may be initiated once a Defendant has admitted liability so that the deputy is in place to manage any interim payments received. Alternatively, an application can be made on receipt of an interim payment or following the final settlement of a claim.
Our Court of Protection team specialises in this niche area of the law and has a reputation for acting efficiently and cost-effectively. You can be sure that we will listen and take time to understand your needs. We then work with you to assess the options, set goals and develop a strategy to achieve them.
We work closely with our clients, their families, case managers, support teams and litigation lawyers to ensure that our clients’ property and financial affairs are managed as collaboratively as possible. We recognise the importance of being flexible and pragmatic in our approach in order to ensure our clients’ needs are identified and met on an ongoing basis.
If you would like to find out more, please contact Mea Fyfe.