A little bit of knowledge ……medical negligence facts and questions.
When we first speak to a Client there are always lots of questions , quite rightly so . What we have found however is some people are happy to ask whereas others feel a little more self conscious , intimidated even .
We appreciate often the circumstances leading to the enquiry are extremely personal and as such a new client often feels vulnerable .
We believe an understanding of the process helps a Client to feel part of the team in relation to their case as opposed to an observer .
Some of the most common questions have been set out below , please feel free to ask if you have any areas of concern.
Medical negligence , also sometimes referred to as Clinical negligence , covers the actions of core medical professionals such as Doctors and Nurses but it also encompasses other professionals providing treatment such as Physiotherapists, Dentists, Opticians etc.
Negligence occurs when the treatment provided ( or in some cases not provided ) falls below the standard of a reasonably competent medical practitioner with the same level of experience and specialism .
A Professional owes a duty of care to their patient and when the treatment falls below this duty and a patient suffers an injury as a result, they have a right to claim compensation.
A medical negligence solicitor is a lawyer who specialises in claims against the medical profession . This area of law is quite different from other personal injury claims and as such the solicitor will have received specialist training and should practice exclusively or largely within this area
It is important to make sure your solicitor has expertise and experience of medical claims as they will need both medical and legal knowledge .
Pursuing a medical negligence claim is not straightforward and it is therefore imperative to approach a specialised practice for advice.
In order to establish a claim there are 2 specific tests which both have to be satisfied,
- Breach of duty ;- you have to be able to prove on the balance of probability ( a greater than 50% likelihood) that the medical practitioner acted in such a way that no other reasonably competent practitioner with the same level of experience faced with the same set of circumstances would have done or failed to do.
This is a high test , deliberately set this way by the Courts. We do not judge by the gold standards simply those of reasonable competence.
It is important to remember that not all mistakes are negligent and not all negative outcomes are as a result of negligence.
Medicine is not an exact science and there are many recognised complications which can occur.
- Causation ;- But for the negligence would the harm have occurred ? You have to prove that adverse medical effect was caused by the negligence of the clinician. If there is a clear breach of duty but it does not affect the eventual outcome then you cannot establish the claim
The Burden of Proof is on you .
It is for you to provide evidence to prove the allegations you are raising. Since your claim relates to medical treatment the evidence will by Medical Experts instructed on your behalf to consider the circumstances, having reviewed your medical records. These Experts must be independent and will not have been involved in any of your treatment.
It is vital that the correct medical expert is used as their evidence will be crucial to the success of your claim. Without supportive evidence you will be unable to pursue your claim.
If your treatment which is the subject of your complaint was provided by an NHS hospital then you proceed against the NHS Trust responsible for that hospital as opposed to the individual Clinician involved.
As a general rule if the treatment was provided by a GP or Dentist or at a private hospital , then you sue the individual involved as opposed to the practice , or private hospital . There are exceptions to the general rule however and these are becoming more frequent as some GP practices and the use of choose and book becomes more frequent.
Another reason why it is important to use an expert in this area of law as your solicitor will need to carefully consider who should be pursued.
Initial investigations are required before you or we can be confident that we are able to present a claim on your behalf. Depending on circumstances of your case we may need a statement form you or others about the relevant issues , and we will always require copies of the relevant medical records .
Once the records are received we will review them and then decide upon the relevant medical experts to instruct . Ordinarily we will obtain a breach of duty report first followed by a causation report. These are then used to formulate the latter of claim.
Once these investigations are carried out we can advise you as to the merits and strengths of your claim . Initial investigations can take several months depending on the complexities of the case and whether you have or are in the process of recovering . If further medical treatment is required it may be possible ( subject to liability ) for us to arrange this for you .
Compensation ;- compensation , which is often referred to as damages is a sum of money awarded by the Court in an effort to put you in the position you would have been in had the injury not occurred . It is to repay financial losses and in recognition of physical or psychological pain and suffering .
They fall into 2 categories ;
- General Damages ; compensation for pain suffering and loss of amenity ( effect on your lifestyle) as a result of your injury. Your non-financial loss.
- Special Damages ; compensation for financial loss which you have incurred in the past or will incur in the future as a result of your injury.
Special damages can include loss of earnings, medical expenses , travel and parking , care and help provided by family or outside agencies ,paid help such as gardening , cleaning and accommodation costs ( either for adaptations to your property or a new accommodation )
Yes . These time limits are provided by statute and are applied rigidly by the Courts . It is rare for the court to be persuaded to allow a claim to be brought after the 3 year period.
This means that court proceedings must be commenced by issuing a claim form at Court within 3 years.
It is crucial you seek legal advice as soon as you become aware that you may have been a victim of clinical negligence. This is because a medical negligence claim must be brought within 3 years of when you knew or ought to have known that the negligence occurred.
More often time will run from the date of the treatment however in other cases you may not have become aware of the issues until a later date , this is termed your date of knowledge and in these cases the 3 year period will run from your date of knowledge.
A few exceptions …
Minors ;- if a claim is brought on behalf of a child , their 3 years start from their age of majority. This means they have until their 21st birthday to start Court proceedings .
Deceased ; the time runs from the date of death.
It may be possible to agree an extension to primary limitation with the potential defendant if necessary . Your solicitor will advise you about this if it appropriate.
This is probably one of the main reasons why people are put off making a claim , the thought of having to go to court .
The vast majority of cases are resolved by negotiation. Even if proceedings are issue very few actually end up in trial . The Court strongly encourages early settlement of cases and alternative dispute resolution , such as mediations or joint settlement meetings .
In the unlikely scenario that you case goes to trial you will be taken through the procedure step by step and your solicitor will provide you with the assistance you need to help you get through .
The main reason for instructing us is to allow us to deal with the litigation which in turn allows you to concentrate on your recovery .
The short answer is yes , the cost of investigating and pursuing a medical negligence claim is very high , however there are lots of different options available to remove the cost from you . We appreciate this is often one of your main worries . We want to assure you regardless of your financial situation you can be confident of our help .
Before you start the process it is important to consider your funding options.
You may have an existing insurance policy which covers the costs of investigating and pursuing a medical negligence claim, Legal Expense Insurance, if so we will review the policy and liaise with your insurers to ensure you are completely protected against any cost implications.
We may be able to act under a Conditional Fee Agreement ( commonly referred to as a no win no fee arrangement).
Entering into such an arrangement means we only receive payment of our fees if the claim is successful . At the end of a successful claim we are entitled to recover our costs from the defendant.
Recent legislative changes ( April 2013) meant that the Claimant was no longer entitled to ask the Defendant in a successful claim to pay their success fee. This is now the Clients responsibility , however it has been capped at 25% of general damages and past financial losses .
The percentage amount of the success fee is designed to reflect the risks in the case and the lawyers risk of losing and not receiving payment . Full details are explained in our Conditional Fee Agreements and we will take you through this to make sure you understand how it is calculated. It is not a simple 25% of the damages as is so often misreported. The 25% cap is to protect you as a client, to make sure the success fee cannot wipe out your compensation.
Trade Union Membership – if you are a member of a trade Union you may be entitled to receive funding for your claim . We can contact them on your behalf to see if they would be prepared to assist .
Legal Aid – legal aid is still available for cases involving certain types of medical negligence , primarily birth cases .
This is such an important area to consider we will go through all of the funding options that are available to you at the outset of your claim. This is to give you the peace of mind that embarking on a claim will not cause financial stress upon you or your family.