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Bringing a claim in clinical negligence

Unfortunately, medical accidents happen. Making a claim for damages can be a worrying and stressful experience. We recognise that most of our clients have never been involved in anything similar before, and it can be daunting. We are here to guide you through this process.

It is imperative that you choose a firm which is specialised in pursuing clinical negligence claims. This can be done by ensuring that the firm you instruct is on either the Solicitors Regulatory Authority or AvMA expert panels. Foot Anstey are on both.

Clinical negligence claims are difficult to pursue. The percentage of claims that succeed is lower than for other personal injury claims. Clients tell us that the stress of making a claim can be as bad as the original injury. We will do our best to keep the stress to a minimum. It will assist you to be aware of the process involved.

The legal system in this country is complicated and changing all the time. Some of the principles which the courts apply in considering claims for clinical negligence are confusing and difficult to understand. We will take the time to explain the principles to you and ensure the proceedings are as smooth as possible.

We recognise that your primary concern may not be to recover compensation. Perhaps you seek an apology and an assurance that what happened to you will not happen to others. Perhaps you just want to know whether what happened could have been avoided. We can help you seek these solutions.

The Legal Principles

To recover damages for injury sustained in a medical accident, you will have to show the following:-

• that the treatment or diagnosis about which you are complaining occurred as a result of negligence on the part of the hospital or clinician concerned. To prove this you must be able to show that no responsible body of medical practitioners would have treated you in the way you were treated.
• that the negligent treatment has caused the injury, loss and damage in respect of which you are seeking compensation.

In clinical negligence cases it is often difficult to say whether the hospital or clinician were negligent, or whether your injuries were caused by that negligence. You do not have to prove this beyond all doubt, but you have to show that it is more likely than not that your opponent was negligent (this is called proving 'on the balance of probabilities'). You must appreciate that:

• medical treatment may produce a less than perfect result (an adverse outcome)
• even where an adverse outcome could have been avoided, the treatment is not necessarily negligent
• even where negligence can be shown, you do not necessarily have a valid claim. The reason for this is that the negligence may not have caused you injury. For instance, a delay in diagnosis of a fracture of one week may not alter the treatment you receive or the outcome.

The Complaints Process

Sometimes it is useful to make a formal complaint to the hospital or clinician, for investigation under their internal complaints procedures, before undertaking any investigation into the claim. The advantage of this is that a full account of the treatment you have received is given, and the hospital will explain why it took the action complained of, or why there was an unsatisfactory outcome. We can assist you through this process.

Limitation Period

Normally, you have 3 years in which to commence court proceedings against the hospital or clinician. However, that period runs from the date on which you became aware that someone had made a mistake or that you had suffered some injury. We will monitor the limitation period for you, to ensure that the three year period is not overlooked, but you should be aware of the period also.

In addition, you should note that in respects of claims involving children this 3 year limitation period does not commence until they reach 18. However, if your claim involves your child we would recommend that you commence proceedings early in order to ensure your recollection is fresh and that the notes are easy to obtain.

Finally, it is also possible that the limitation period may not apply if the claimant is deemed not to have capacity to pursue a claim. For example, claims where a brain injury was sustained at birth many years ago.

The Claims Process

Once funding has been formalised and before we can advise you whether your claim is likely to succeed, we have to obtain all the relevant medical records from the hospital and/or your G.P.

Following receipt of the medical records we will meet with you to draft a detailed statement from you, and any other witnesses.

Once the medical records are available and statement completed, we will instruct an independent medical expert to study them, and to advise whether there are sufficient grounds for alleging negligence against the hospital or clinician to justify starting proceedings through the courts. More than one expert may be necessary if there is more than one area of medical expertise involved.

These experts will be based in a different part of the country from the place where the negligent treatment occurred. They will usually be busy clinicians themselves, with their own patients to look after, and often it can take 3 months or more for them to complete their reports, particularly if they are well-known in their field of work. The choice of expert is crucial, since the claim is likely to stand or fall depending on the contents of their report.

If the expert advice is that there are sufficient grounds to justify bringing proceedings against the hospital or clinician, then we will consider with you the next step to take. Taking proceedings through the courts is a long and expensive process, and not a step to take lightly. There may well be other ways of achieving a satisfactory outcome, which do not involve the courts. We will advise you about them.

We will not commence Court Proceedings unless and until:

• your claim has been properly investigated
• all relevant obtainable material has been assessed
• your claim is supported by appropriate expert medical opinion
• the amount likely to be recovered is in proportion to the legal costs likely to be incurred
• the pre-action Protocol for Clinical Negligence Cases has been complied with
• other ways of resolving the claim or of seeking appropriate redress have been explored
• appropriate funding arrangements are in place between us
• you authorise us to start proceedings

Damages

Your claim for damages may include the following:-

• a claim for past and future care. This is often the most significant aspect of any claim. If you are unable to perform activities at home as you did before then you may be able to claim for this.
• any financial loss or expense you have suffered, for example prescription charges, travelling expenses and telephone calls, and the cost of private medical treatment.
• lost earnings through not being able to return to work or having to take time off work following the negligent treatment or while further treatment is undertaken.
• all anticipated future loss and expense, including any loss of earnings which is likely to arise in the future.
• damages to reflect any disadvantage you may suffer in the future in seeking employment.
• damages to reflect the pain, suffering and restrictions caused by your injuries.
• if your claim arises as a result of the death of someone close to you, you may be entitled to damages for bereavement.

Damages for pain, suffering and the restriction on your activities caused by your injuries are known as general damages because they cannot be quantified in the same way as losses and expenses, but are assessed on the basis of the sums which have been awarded by the courts to Claimants in other similar cases. The amounts awarded for general damages may seem small in comparison to the reports you read about in the newspapers, where people are said to have recovered substantial sums for relatively trivial injuries. You should bear in mind that newspaper accounts of personal injury awards are notoriously misleading. They fail to distinguish between what people claim in respect of an injury and what they actually recover; they often quote cases from the USA (where the amounts recovered for injuries are assessed by lay juries and not by judges) without making it clear that the system for assessing damages in this country is very different; and they fail to distinguish between sums awarded for general damages and sums awarded for financial loss, which usually comprise by far the greater part of the overall award.

Welfare Benefits

If you have been off work as a result of your injuries, you should be aware of the welfare benefits to which you may be entitled, such as disability living allowance, employment and support allowance (formerly incapacity benefit) and severe disablement allowance. We can advise you on this if you think you may be eligible.

Delays

Clinical negligence claims can take a long time to resolve. One factor which delays the resolution of a claim is the time it takes to establish a firm prognosis in respect of your injuries, i.e. how long it is likely to be before the effects of your injury disappear or whether you are likely to be left with any permanent symptoms. This period varies according to the severity of the injury. In cases involving head injuries or serious orthopaedic injuries, it may take up to five years for the claim to be concluded.

We will do what we can to resolve your claim in the shortest possible time. It is not, however, in your interests for a claim to be settled too soon. Once a claim has been settled, it is too late to ask your opponent to pay you more money.

What Can You Do?

There is much you can do to assist us in dealing with your claim. It is important that from the outset you try to keep written records of the following:-

• the circumstances of your original treatment and the names and addresses of the hospitals and doctors involved
• details of all expense you incur which you wish to claim from your opponent
• details of your injuries and treatment at various stages (this may be particularly useful when you are examined by our medical expert, who will want you to describe your symptoms and treatment to date)

Keeping You Up to Date

Throughout your claim we will always keep you informed of our progress by sending you copies of our correspondence, by writing to you, and where possible by regular meetings with you. We are here to help you, and to make things as easy as possible for you.