Clinical Negligence Fact Sheet
This advice sheet gives you some general information about making a complaint or claiming compensation after a medical accident.
Claiming compensation
For your claim to succeed it will be necessary for us to show that your medical accident happened because of negligence. It is not enough just to show that something went wrong.
It is a defence for the medical person who treated you to show that he or she acted in accordance with a practice rightly accepted as proper by a responsible body of medical people skilled in that particular field.
What this means therefore is that if the medical person who treated you can show that he or she complied with an accepted medical practice your claim will fail.
As clinical negligence cases involve both medical and legal issues we will need to get a report on the medical issues from a medical expert skilled in the particular kind of treatment which you received.
Having established that you were the victim of clinical negligence, if your claim is to result in an award of compensation, we will then need to prove that it is more likely than not that it was this negligence which caused the harm or loss which you went on to suffer.
If your claim arises from treatment in an NHS hospital the hospital will be the Defendant rather than the individual medical person who treated you.
If your claim is directed at a family health practitioner such as a GP, optician or pharmacist then the claim will be brought against the individual. This is also the case if the medical person treated you on a private paying basis.
It may be that even after the medical accident you continue to receive treatment from the person responsible. In this event the medical practitioner should not discuss the case with you.
If you were to receive an approach or communication about the case from a person or institution representing the person responsible for your medical accident, we would ask you to tell us and to avoid responding personally.
You will be entitled to claim two types of compensation known as
- general damages and,
- special damages.
General damages means compensation claimed for the personal injury you suffered as the result of clinical negligence. This includes pain, suffering, and the extent to which your lifestyle has been affected by the medical accident.
Special damages are the financial losses which you suffered as a direct result of the medical accident. This might include for example travelling expenses, medical expenses, prescription charges, loss of pension rights and loss of earnings/profits. As well as claiming these financial losses up to the date your claim succeeds it will also be possible to recover financial losses which will be incurred in the future as the result of the clinical negligence.
It will usually be possible to recover interest on your special damages up to the date of settlement or order of the Court. It is also possible to claim interest on general damages up to this time although at a lower rate.
If the medical accident resulted in death a claim can be made for loss suffered by the deceased’s dependants and on behalf of the estate. Such a claim could include bereavement damages for certain relatives, funeral expenses and the cost of a modest memorial.
It is your legal duty to keep your losses to a reasonable minimum. This means for example that if your medical accident caused you to be absent from work, we will need to show that you took all reasonable steps to get back to work as soon as you were fit to do so.
It is very important that you are honest about your symptoms and losses. It is important that you do not exaggerate them or make false statements. Claimants who are found guilty of being fundamentally dishonest with their clinical negligence claim can face severe consequences. This can include becoming liable to pay legal costs of both sides, the case being dismissed or even prosecution.
Under normal circumstances your case has to be started in Court within three years of the date upon which you were negligently treated. Sometimes it is possible to go ahead with a clinical negligence case even though three years have passed since you were negligently treated. This might arise if you did not discover you were negligently treated until sometime after the treatment was given.
In these cases, however it will generally be necessary to show that the case was started in Court within three years of you acquiring knowledge that you had suffered a significant injury attributable in some way to clinical negligence and knowledge of the identity of the person responsible for negligently treating you. In the case of children, the three-year period begins when they attain the age of 18.
Because clinical negligence cases involve medical and legal issues it will be necessary to investigate your case thoroughly before starting the case in Court. The investigations will begin by obtaining your relevant records. Reports on your case from medical experts skilled in the relevant fields with a reputation for being fair will then be obtained. It will be important to find a medical expert with no link or acquaintance with the medical people who treated you. It may then be appropriate to obtain the opinion of a specialist clinical negligence barrister.
At the conclusion of these enquiries, we will give you further advice on the merits of your claim and its value so that you can decide whether or not to begin the case in Court.
Payment of our fees
At the outset we will advise you upon the funding of your case. This will include an estimate of our likely fees for carrying out the investigations. Our fees can be paid on a private fee-paying basis. Please see Client Care letter for details of our hourly rates.
If you have Legal Expenses cover included within one of your insurance policies your Insurer may agree to fund your claim up to the limit of your indemnity under that policy. Usually, your Insurer will set an initial funding limit (a” reserve”) which is referred to in your Client Care Letter, and which may be increased if appropriate.
You should note that the limit of your indemnity and the reserve include not only your costs but those of your opponent. If your claim is successful, as the Defendant is usually ordered to pay your reasonable costs, the Insurers will be reimbursed any costs it has incurred. Subject to the terms of your policy if all of your basic costs are not recovered the shortfall may come from your compensation. However, we guarantee that we will not take more than 25% of your compensation to pay that shortfall. If your claim is unsuccessful the Insurers will pay your reasonable legal costs in accordance with the terms of your policy with them.
If we are satisfied that there are reasonable prospects of your claim succeeding, we may be prepared to deal with your claim on a no win no fee basis by entering into a Conditional Fee Agreement (CFA) with you.
If a CFA is the chosen method of funding your claim the first point to note is that should your claim be unsuccessful you are unlikely to have to pay for the time that Dicksons have spent on this matter but please see agreement and accompanying Funding Sheet for more details. Please note that any disbursements incurred must be funded separately.
If your claim is funded by way of a CFA and is successful, the Defendant would generally be required to pay the basic costs of bringing the claim. As there is a risk that if you are unsuccessful in your claim we would not be paid, we are entitled to what is known as a “success fee” which is payable only if your claim succeeds. This is a percentage based on the risk we consider your claim to have and is set out in your Client Care Letter. The success fee cannot be recovered from your opponent and may be deducted from your compensation. Any shortfall in costs recovered may come from your compensation. However, we guarantee that we will not take more than 25% of past losses and general damages from your compensation to pay any shortfall.
If it is appropriate for you to enter into an After the Event (ATE) insurance policy to cover the costs of any disbursements if you were to lose the case (excluding Counsel’s fees) we will advise you of this. The ATE Premium is divided into 2 elements – the recoverable portion which the defendant should pay and an element which could be payable out of any damages awarded but as above the 25% cap applies. However please note should you lose your claim the ATE premium is self-insured i.e. it will pay for itself.
Legal Aid
Currently Legal Aid is only available for Clinical Negligence matters in very limited circumstances. If the circumstances of your claim and your financial circumstances justify it, we will advise you upon making an application for the cost of investigation to be met by Legal Aid.
If Legal Aid were granted to you, it would generally be limited, in the first instance, to carrying out the investigations. It is usual for the legal aid to be subject to a maximum financial limit governing the amount of work which can be done without further permission from the Legal Aid Agency
Depending upon your financial circumstances you may or may not be required to contribute financially towards the work we do under legal aid. This contribution may be a one-off payment from your savings or a monthly contribution from income. If a monthly contribution is payable this will have to be made throughout the lifetime of the legal aid certificate.
Whilst receiving legal aid you have continuing obligations to the Legal Aid Agency to disclose any change in your circumstances including a change of marital status, address or financial means. You are also required to deal promptly with Legal Aid Agency requests and failure to do so could result in revocation or discharge of your Legal Aid. If your Legal Aid were discharged your legal costs would be paid for up to the date of discharge. If your Legal Aid were revoked, you would have a legal liability to reimburse the Legal Aid Agency for any costs paid out on your behalf.
Please note that if you were to lose your case the Legal Aid Agency would have no liability for the costs of your opponent which could therefore be awarded against you personally.
If, when the investigations are completed, the Legal Aid Agency are satisfied that you have a soundly arguable case which is of sufficient value (not less than £5,000) Legal Aid will be extended to enable you to take the case to Court.
Welfare Benefits
If you are incapacitated as the result of a medical accident, you may well be entitled to welfare benefits. If you are in any doubt about your entitlement to benefits, please contact us so that we can help and advise you.
If your claim for compensation succeeds an amount equal to certain social security benefits which you have received is likely to be taken off your compensation. This deduction is paid directly to the Department for Work and Pensions by whoever pays the compensation.
The period during which benefits paid may reduce the amount of compensation begins on the day following the medical accident and ends on the date compensation is paid or five years from the beginning of the period whichever comes first. If the recoverable benefits exceed your claim for financial losses, you will still be entitled to an award in respect of general damages.
Making a medical complaint
It is not always appropriate to deal with your case by making the investigations we have mentioned or by going to Court. There are many different procedures for making clinical complaints including the following:
These can be made either formally or informally. Informal hospital complaints are usually made verbally to deal with trivial matters and involve an open discussion with a senior member of the medical staff involved in your case.
Formal complaints involve consideration of your complaint by a person designated with responsibility. This person will usually give those responsible for your case the opportunity to comment and you will then receive a written reply explaining the hospital’s side of the story.
If you feel that a doctor has been guilty of serious professional misconduct you can complain initially to the GP Practice and then to NHS England. If the complaint is made out it will be referred to a professional conduct committee for a formal enquiry. This committee’s ultimate power is to strike the doctor off the roll.
It may be that adopting one or more of these complaints’ procedures will satisfy you and remove the need for us to investigate and/or take the matter to Court. However, whether or not you adopt one of these complaints procedures you may still ask us to investigate the case with a view to taking it to Court if you remain dissatisfied.
How long will it take for your case to finish?
It is very difficult to give precise information about how long your case will take because each case depends on its circumstances. However, if your case had to be decided by a hearing in Court it could well take as long as three years from start to finish. In some cases, where the evidence is complicated, it may even take longer than that.
We have found by experience that it takes between six and nine months to complete our investigations enabling us to then advise you upon the strength of your case and its value.
We promise to give all our clients as much information as possible about the progress of their cases, but you are always welcome to contact us for information and advice.
Even if it is necessary to begin your case in Court the vast majority of claims do not have to be decided at a hearing. This is either because settlement is achieved before the case goes to Court or the case has to be abandoned due to information coming to light revealing that the case is unlikely to succeed.
In the unlikely event that the case is decided at a Court hearing you would probably need to give evidence in support of the claim. We appreciate that giving evidence in Court can cause inconvenience and personal distress, but we will endeavour to guide you through the hearing process and avoid unnecessary problems.
It will save time and help us to maximise your claim if you:
- keep notes on relevant treatment which you receive after the medical accident and, in addition
- keep records of financial expenses which you incur as the result of the medical accidents with receipts were possible.
Please keep us advised of relevant ongoing treatment and expenses which are incurred.
Disclosure of documents
After the case is started in Court each side will need to tell its opponent about the existence of documents which they have or have had, and which are relevant to the issues in the case. This process which is known as ‘disclosure’ helps both sides to test the strength of their opponent’s case before it gets to Court. It can help in reaching a settlement therefore saving legal costs. If your case is started in Court, we will give you careful advice about the disclosure procedure but suffice to say at this stage that it will be important for you to tell us about all documents which are relevant to the issues in your case.
We hope that this clinical negligence advice sheet has been helpful but if you have any questions, you would be welcome to raise them with the Solicitor assisting you and/or Mr. Andrew Martin who is our specialist Clinical Negligence Director.
