A 40 year old woman who suffered a 10 month delay in diagnosis of breast cancer required a mastectomy and breast reconstruction. She was awarded:
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Having to undergo any medical procedure can cause a great deal of stress and disruption. Even with the greatest medical care and support. Unfortunately, there are rare occasions where things don’t necessarily go to plan and mistakes are made, or vital signs or symptoms are missed, or misdiagnosed. Where these cases of medical malpractice occur, you may find yourself wondering how this was able to happen, why, and whether things will ever return to normal.
For many of our clients, they often feel that it ‘just happens’ and that there isn’t much that they can do about it. This feeling of helplessness is often worsened by the fact that the extent of their illness or injury can sometimes stop them from working or pursuing their interests, leading to financial problems and emotional distress.
Medical Negligence can occur in any treatment. Commonly, a patient experiences a significant delay in either diagnosis or treatment of an illness or injury, causing their condition to deteriorate further. Alternatively, the diagnoses and treatments themselves may have been incorrect or inappropriate. Injuries can also be sustained during treatment. Every case is different, but Your Legal Friend can guide you through each stage of the process from investigation to claiming medical malpractice compensation. Our expert medical lawyers have successfully worked on a wide variety of medical negligence cases, so we have the know-how to ensure the best possible outcome for you, whatever the situation. We also work on behalf of families who have lost a loved one as a result of poor medical care. We appreciate that the effects of medical negligence can often be psychological as well as physical, so we will do our best to provide you with all the help and support you need. If medical or clinical negligence leads to a preventable illness or injury, which causes you pain, distress or loss, you can seek the help and support of a medical lawyer experienced in clinical negligence law.
If you feel that sub-standard medical care has made you ill or caused you injury, if you can, you should speak to the doctor or practitioner responsible right away. Often they can put things right so that you don’t have to wait. If you can’t speak to your doctor, then ask their practice for their official complaints procedure, as this changes from department to department. When you have this, write a letter to the address specified, and they should respond on how they’re going to resolve the problem.
While this is happening, do ask for a second opinion to see if you can be treated properly by another doctor while you wait for a reply.
You may also wish to speak to the NHS Patient Advice and Liaison Service (NHS PALs) who will be able to help you with your complaint. For some people, an apology is enough. For others, where an injury or worse has occurred, an apology might not be enough; in cases like these, you may wish to speak to us about your legal options.
Absolutely, if we feel your case has a good chance of success.
If you’ve been struggling to make ends meet because of medical malpractice or mistreatment, then you won’t want the additional cost of legal fees making matters worse. Often where medical negligence leads to injury, you may need to take time off work which could lead to lost wages and more, which makes things hard when you might need expensive medical care and treatment to put things right. To help, we run most of our claims on a ‘No Win, No Fee’ basis so that you only pay our legal costs at the end of a case if you win, which can be up to 25% of the compensation amount. If your claim is unsuccessful, you pay nothing, so there’s no risk to you.
In very serious cases where the compensation provided is to be used to pay for future care and support costs, we may not deduct anything, as we’ll claim these costs from the other side. If you’re unsure as to whether this applies to you, please mention it to our legal team.
Whatever the nature of your medical negligence claim, we always seek the maximum level of compensation for our clients.
We will require permission to access your medical records, we will need your personal details so we can contact you throughout your claim, and we will need a statement from you to explain what happened to you, and how your medical treatment has affected your life. From time to time, we may need to request specific details either over the phone or by post.
You normally have three years to make a claim either from the time you received sub-standard care or at the point where you realised that poor medical treatment was to blame for your suffering and injury. Usually, if you attempt to bring a claim after this date, it will be considered ‘statute barred’ or ‘out of time’ under the Limitation Act of 1980, Section 11. If you are within the time limit or are unsure as to whether you fall within the period allowed, you can speak to us, and we’ll be able to advise you as best we can based upon the information you’re able to share with us.
There are some exceptions, however:
It’s helpful if you start your claim sooner as the medical records and investigations will be readily available and the detail of the event will still be ‘fresh’ in your mind, which will help when putting your case together.
After a free initial phone consultation, a clinical negligence law solicitor can get a feel for your circumstances, the problems you face and consequences you have to live with. If they feel that something wasn’t done, that should have been, and your case should be investigated further, a medical lawyer will go on to request copies of your medical records, with your permission. We will tell you if we think you have a medical malpractice case that will succeed and equally importantly if we don’t think so.
Throughout your claim, Your Legal Friend will help you every step of the way
I am very happy and satisfied with the settlement you achieved for me and the service was excellent and thank you very much
Mrs E. Swaffield
Our medical negligence team has years of experience working on a wide variety of medical malpractice cases, so we understand just how difficult a decision it can be to bring a claim.
Our department is run by experienced solicitors with a track record of handling difficult cases successfully while ensuring that families are looked after throughout the claim. Many of our file handlers are APIL accredited Senior Litigators, demonstrating their ability to manage medical cases effectively. The department has been commented on by Chambers and Partners as “very responsive and on the ball” and “very good at communicating and are pleasant to deal with”.
We are committed to guiding you through every step of the process. We ensure that your claim is handled carefully and professionally by our specialist solicitors, while working alongside medical experts, to guarantee the best results for you.
If you’d like advice as to whether you might be able to pursue a clinical negligence claim, either call our freephone number or submit your details through the form on this page and we’ll be in touch to schedule a phone call at a time that’s convenient for you. If you decide that you’d like to start a claim, one of our medical malpractice lawyers will be able to tell you whether you can enter into a No Win, No Fee agreement*. A ‘No Win, No Fee’ agreement means that in the event your claim is unsuccessful, and you have co-operated fully with us throughout, you won’t have to pay any legal costs, so there’s no financial risk to you.
The medical negligence department is run by Laura Morgan, our Clinical Negligence Director who is listed in the Legal 500 for being an ‘excellent clinical negligence practitioner’ and is ranked in Band 1 in the UK Chambers and Partners ranking table. As a listed member of the Law Society Clinical Negligence Panel since 2005, Laura has specific expertise in handling cases involving brain injuries to both adults and children, as well as instances of medical negligence that lead to either fatalities or amputation. The department has also managed complex cases around the mismanagement of paediatric cases (cases involving children) and cardiac (heart) conditions, where illnesses and heart diseases are missed or aren’t picked up quickly enough. Laura was also short-listed for ‘Claimant Personal Injury Lawyer of the Year’and ‘Lawyer of the Year’ in 2017/18.
The effects of medical negligence can be devastating for the individual and their families, so securing appropriate compensation for them as quickly as possible is our top priority.
Director of Medical Negligence
In a tragic case of medical negligence, Elaine Lapworth lost her life to cancer after routine check-ups for ulcerative colitis failed to be arranged after her original diagnosis in the early 1990s. Ulcerative colitis is known to increase a patient’s chances of developing bowel cancer, so routine check-ups and screening are important to catch cancer early so it can be treated.
Her husband, Mr Lapworth said:
“Initially Elaine received appointments every six months, but this reduced to every year or two over the rest of the 1990s and early 2000s. Then in 2003, we stopped receiving appointments….”
In 2011, Elaine’s health quickly began to deteriorate, and her GP repeatedly diagnosed it as a virus. In 2012, Elaine became very ill and was sent to the hospital where tests confirmed that she had cancer and that it had spread to other areas of the body. Within five weeks of admission, Mrs Lapworth passed.
Mr Lapworth added: “Elaine was my best friend and soul mate and I miss her companionship every day. I still find it hard to believe that medical professionals could have let her down so badly. We could have had many more years together.”
Sadly, cases like this aren’t uncommon, where improper administrative practice and sub-standard follow-up care lead to avoidable illness, injury, or in rare cases, fatalities. You can read more on Mr Lapworth���s story here
“Your Legal Friend have been a huge help throughout this whole process, and I can’t thank them enough. Sara came to visit me in my own home and immediately put me at ease.
“They are very, very professional and efficient. The team showed real compassion and sensitivity, and I would highly recommend them.” – David Delyth, North Wales
Read more on David’s story here
Based in Birkenhead, we’ve been serving England, Wales nationally for over 30 years. We feel that by keeping all of our expert teams in one location, it’s easier to share insights and experience on cases when unusual challenges arise, which can be harder to do if you’re spread out across the country. For some clients who prefer the personal touch, we often arrange to come out and meet them in person.
You can find us at No.1 Europa House, Conway Street, Birkenhead, CH41 4FT
We ask you to sign forms of authority so that we can obtain your medical records from your GP and any hospitals that have treated you.
As the medical experts we instruct need to know what happened during your treatment, we work with you to draft a detailed, accurate statement in your own words
You are responsible for minimising the losses you have incurred as a result of the alleged medical negligence, so you need to attend any available treatments that could aid your recovery. You may also need to return to work as soon as it’s safe to do so.
Clinical negligence law states that you must prove that the treatment you received fell below the standard expected of a reasonably competent and skilful medical specialist of the type who treated you and that, as a result, you suffered a loss or injury. To do this, we obtain independent medical evidence from an expert in the appropriate area of medicine.
We have to establish whether the sub-standard treatment you received is likely to have led to your injury or loss. As this can be difficult to establish, you may need to see one or more medical experts who will assess your current condition and what the future holds for you.
The value of your claim comprises:
You need to keep all original financial documents safe as these will be needed when we prepare your case to go to Court. These documents include accounts, payslips, and receipts for expenses and medical treatments.
Although only a small number of cases proceed to a trial, we prepare every case for this eventuality.
The trial takes place before a Circuit or High Court judge who will make a decision based on the evidence your medical lawyer has prepared.
If you win your case, the amount of compensation will be decided by negotiation with the defendant or, if your case goes to trial, by the judge. The defendant will usually be ordered to pay us the costs we have incurred in preparing your case. We will also agree on a date by which your compensation will be paid to us so that we can pay your compensation as quickly as possible.
Millions of patients are treated in the UK every year by medical professionals both by the NHS and privately. In the vast majority of cases, treatments run as expected and people receive the high standards of care that they’re used to getting. Unfortunately, in some rare cases, things do not go according to plan, resulting in avoidable illness, injury and even death.
Often, being ill in the first place is bad enough, but it takes a lot of trust to place yourself or a loved one in the care of a medical professional. So if things do go wrong, it can make an already stressful and sensitive situation much worse.
Medical negligence is where a medical professional provides improper or substandard care, where they fail to carry out their medical obligations and responsibilities; which later results in illness or injury to the patient that could have been avoided, had the right standard of care been provided in the first place.
Often, when trying to determine fault, the basic legal test for medical negligence is known as the Bolam test – the result of a direction handed down by the judge McNair J in the case of Bolam v Friern Hospital Management Committee:
'A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art’. McNair J, 1957
The judgement is widely interpreted as that a medical practitioner isn’t guilty of acting neglectfully if they have acted in such a way that other doctors would also have acted under the same circumstances. That said, the Bolitho test allows for a more flexible interpretation of the law, instead of asking ‘what would the majority have done?’ It asks ‘what should have been done?’. So if a practice or procedure does not operate in a way that ‘makes sense’ in the eyes of the law, practitioners cannot rely on the defence of the medical majority as per the Bolam test, if the procedure itself is indefensible.
If you feel you’re suffering from medical neglect and wish to sue your doctor, it’s worth noting that while you may be awarded medical compensation for your illness and injuries, it doesn’t necessarily mean that you’ll receive an apology, nor does it guarantee that medical procedures will change. More importantly, it doesn’t ensure that the doctor or medical professional in question will be censured, disciplined or ‘struck off’. Seeking compensation for your poor treatment is largely about getting the recognition that you’ve suffered at their hands and that you haven’t ‘imagined it’, and making sure that you aren’t financially worse off because of their mistakes.
There are two ways you can claim medical negligence compensation. You can try to handle the claim yourself, or you can discuss your circumstances with a medical negligence solicitor who, if they think your case can succeed, will handle it on your behalf. In both instances, the circumstances need to be thoroughly investigated and your claim substantiated in a way that seeks to prove that the fault lies with the medical practitioner you seek to claim against. Having prior knowledge and experience of the process will help to ensure that you attain the greatest compensation award appropriate to your circumstances.
Should you choose to use a solicitor to handle your case, it all starts with a free telephone consultation. These can last for anything up to an hour, during which we will seek to understand what’s happened to you, why, and what medical treatment you did or did not receive. If we feel that something doesn’t sound quite right, or if we feel that there’s a problem, we may then ask for your permission to request your medical records from the hospital, doctor or medical authority in question, so that we can investigate further. If we’re able to find evidence of malpractice or substandard care, we will then contact you to ask if you would like to proceed with your claim; at which point you can sign up to a Conditional Fee Agreement (CFA) on a ‘no win, no fee’ basis. If your claim is unsuccessful, you’ll pay nothing, so there’s no risk to you. If your claim is successful, depending upon the severity, you will be charged 25% of your damages, plus the cost of an ATE premium to insure you against any unexpected costs and challenges during the claim. There are some medical cases, however, where there might not be a deduction, such as with cerebral palsy cases, but you’ll be made aware of any potential deductions from the outset.
You can. You can bring a medical negligence claim against a private medical practice. All private hospitals and practices will be insured against malpractice cases, so these insurance policies will cover your claim if you’re successful.
Our claims are handled on a ‘No Win, No Fee’ basis, which means that you will pay the legal fees for your medical negligence claim, but only if your claim is successful. If you are unsuccessful, then you won’t pay for any costs, so there is no risk to you. ‘No Win, No Fee’ agreements allow our solicitors to get started right away so you can focus on your recovery.
We can’t tell you whether you should, or should not pursue a claim for medical negligence. But if you feel that medical neglect or medical malpractice has caused you pain, suffering, distress or a loss of income, then medical negligence compensation might go some way to helping you to improve your circumstances. No amount of money can fix what you might have endured, but it may make your life, and perhaps that of your loved ones, a little bit easier.
You may be worrying about the view, often put forward by the media, and possibly friends and colleagues, that medical malpractice claims are crippling the NHS and are in fact increasing the chances of accidents and injuries occurring. Everyone is entitled to an opinion, but it’s worth knowing that of all the patients handled by the NHS, as few as 0.005% make a claim against them. And of that small minority, the NHSLA has boasted in its’ annual report that 64% of the clinical cases they took to trial were successfully defended resulting in savings of £41.6million.
Despite continued legal action against them, things don’t seem to be improving. In the NHSLA’s last statement, they said that: ‘Last year we paid over £1.1 billion to patients who suffered harm and their legal representatives, this coming year it will be £1.4 billion.’
Across a huge organisation that employs over 1.5 million people, putting the NHS in the top five of the world’s largest workforces, you need to consider for yourself whether your claim, to help protect you and your family from financial insecurity, really makes a material difference to them.
If you’re left coping with the outcome of mistakes that were made during your care and treatment, often with financial consequences, then one underlying fact remains true. You have suffered, and you shouldn’t be left to pay for someone else’s mistake for the rest of your life.
It’s worth remembering however that whoever you intend to make your medical negligence claim against, they will be covered with indemnity insurance against such claims as detailed in The Health Care and Associated Professions (Indemnity Arrangements) Order 2014. So you do not need to worry about a doctor losing their savings or their home, as the insurance premium will pay for the associated costs and damages if the claim is successful.
When you discover that medical malpractice or doctors’ negligence has caused you, or a loved one harm, you should look to report it and to speak to a solicitor as quickly as you can because there is a medical negligence claims time limit. Reporting this quickly can be difficult, as the circumstances are likely to be stressful and traumatic, so speaking to lawyers and solicitors will likely be the last thing on your mind. But it’s worth knowing that here in the UK we have a statute of limitations which sets a time limit of three years for you to bring a claim, which begins from the ‘date of knowledge’. The date of knowledge is defined in the Limitation Act as the date when you found out, or ought to have known:
So if your doctor failed to diagnose you as suffering from a life threatening cancer, despite repeated visits to them in March of 2012, but then didn’t discover that you had cancer until the 1st July 2014, then your date of knowledge will be 1st July 2014, and it is from there that your three year limitation period begins.
There are exceptions to this rule in the case of claims involving children and accidents involving fatalities.
In the eyes of the law, individuals are not considered to be an ‘adult’ until they reach the age of 18. As such, children are unable to claim compensation until they reach this age. The law states that if someone under the age of 18 suffers as a result of medical negligence or clinical malpractice, they have three years from the date of their 18th birthday to pursue a claim. As a parent, you will still be entitled to claim compensation on your child’s behalf before they turn 18, but the limitation period does not start until they turn 18.
Fatal medical accidents
In the unfortunate event that an accident or incident of negligence or malpractice results in death, the law also provides exceptions for this. People who have been injured do not always pass immediately, so the date of limitation will run from the date of their death rather than from the date that the accident occurred.
Normally the individual who was harmed as a result of medical neglect will be the one to make a claim. However, there are instances where you may feel the need to contact us regarding malpractice experienced by a friend or loved one. You may feel this way because they are unwell enough to pursue a claim themselves, or in very unfortunate circumstances, they may have died as a result of clinical negligence, and you may be looking for answers. Provided that you became aware of the incident and the involvement of malpractice within the last three years, and it happened in England or Wales, we can advise you as to what steps to take next.
Whether you can or cannot claim medical negligence compensation will depend upon a variety of factors which make it difficult to give a definite answer here. It will depend upon how long ago the event took place, how much this has affected you and your way of life, and much more. All of which will be discussed with you as part of your free initial telephone consultation.
When someone you know has been injured or is suffering because of sub-standard medical treatment, it can feel like their trust has been taken for granted and you may be looking for ways to help them. In some cases, we may be able to help you to claim on someone else’s behalf. You may be able to claim on someone else’s’ behalf if the victim doesn’t have the mental capacity to claim for themselves, or if you have a child who needs compensation and you’re standing in for them. There may also be cases where if someone is seriously injured, they may need someone else’s support to make a claim.
In some very rare and serious cases, medical negligence can be fatal. No amount of compensation or support will ever make up for the loss of a loved one, and coping with their loss will be very difficult. What we can do is to support you in your claim to help with any financial pressure, helping towards legal fees and funeral expenses.
When a child is the victim of poor medical treatment, it can make things complicated depending on the injury. If it’s an injury they’re likely to recover from, they can claim once they turn 18 years old. On their 18th birthday, they will have three years to start their claim so the time limit will fall on their 21st birthday. If an injury is more serious and it causes problems with their development, you may want to pursue a compensation claim earlier to help towards the costs of care, treatment and rehabilitation. In this case, you may be able to claim on their behalf as either a parent or guardian. For more information on this, please speak to a member of our legal team.
‘Suing’ for medical negligence and pursuing a medical negligence claim is much the same thing. Should you chose to ‘sue’ the NHS or any other medical body, our expert solicitors will advise you as to whether your case has a chance of succeeding and what the next steps might be.
If you intend to bring a claim against, or sue the NHS, even if it’s an individual doctor or department, it will often be brought against the NHS Litigation Authority (NHSLA, now NHS Resolution) who are responsible for handling all clinical negligence claims brought against the NHS. In this instance, if your claim is successful, your settlement will come from a fund set up specifically for those who have been victims of medical neglect or malpractice.
In the first instance, you should contact the Patient Advice and Liaison Service (PALS) within your area. If you are looking to make a complaint about the quality of your medical care, PALS will be able to advise you on how to make that complaint, whether that’s writing to NHS England, or your area Clinical Commissioning Group (CCG). In doing so, the proper authorities will have an opportunity to look into the problem and determine whether there was a breach of medical standards or procedure in your unique case. When you contact us for a free, no obligation telephone consultation, any response you might have received from these authorities will be helpful to us in understanding whether or not you have a case.
When looking to file a medical negligence case, you’d be looking to bring your claim to the authority responsible for overseeing your care and treatment. This authority could be an NHS trust, or it could be a larger Clinical Commissioning Group (CCG) that looks after a collection of trusts. You may even need to bring your claim to the attention of NHS England.
If you’re looking to pursue a claim for clinical negligence, then you have the option of trying to handle the process yourself or instructing specialist medical negligence lawyers and solicitors to handle the case for you. In handling it yourself, you won’t incur direct costs from a law firm, but you will need to handle a lot of paperwork that you may not be familiar or comfortable with. If your claim is successful, you may find that the level of damages or medical compensation you receive is much less than if you had had legal help. Experience in handling these matters for many years will make you more aware of what you can claim for and why; helping to maximise the compensation you’ll receive. If you bring your claim to a medical negligence law firm, their experienced and accredited staff will do all the hard work for you, updating you when necessary, so you understand how far along your case is. They will handle all the hard work and the liaison with medical bodies and the courts to ensure that you receive all that is fair and reasonable.
When you first get in touch, our client support team will arrange a free consultation with one of our medical solicitors to discuss your circumstances and to see if you have a claim. During the discussion, we’ll make you aware of the different methods of funding your claim, as well as our ‘No Win, No Fee’ agreements.
If we think we can handle your case successfully, we’ll contact the practice or doctors responsible for your poor treatment to see whether they admit that your treatment was sub-standard (accepting liability). If we’re told that they do accept responsibility for the damage done, we can secure an interim payment for you to help towards the costs of any treatment or follow up checks that you might be having. These interim payments will be taken out of your final compensation award.
Our solicitors will then continue to collect more evidence and detail to support your claim, seeking advice from independent medical experts. These experts can provide their opinion on whether you were properly treated under the circumstances, they can also help us to understand what the future implications for your health and well-being may be so we can claim back the resulting costs in your settlement amount.
98% of medical negligence cases never make it to court, often because both sides will try to settle these cases outside of the courtroom, reducing the time needed to get you the compensation you need. However, if the practice or body responsible for your injury won’t admit that it’s their fault, or if they do not agree with the amount we’re trying to claim for you, then we will start court proceedings.
Once court proceedings are started, and dates for the trial are agreed, a settlement or agreement might still be reached beforehand. But in the rare chance that your claim does go to court, we’ll be there to support and represent you along every step of the way.
If you’re still being treated, you may be worried about making a complaint in case it has a detrimental impact on your current care. It is against the law for you to be treated any differently by a hospital or a GP, and they cannot refuse to treat you if you raise a complaint or a claim for compensation. Even so, you may feel more comfortable if you were looked after by someone else, so you can ask to be referred to another doctor, or to be transferred to a different hospital.
In medical negligence cases the ‘burden of proof’ lies with the claimant, which means that you will need to prove that your treatment was ‘negligent’, and that this negligent treatment led to an injury, illness, loss or suffering. You must also be able to prove that the doctor or medical professional breached their ‘duty of care’ to you. For most people, this will be very difficult, as it involves understanding what the doctor’s responsibilities were, what harm was caused and whether the medical evidence proves that they made a mistake. Sometimes, underlying illnesses or conditions can be responsible, so you need to be able to work out whether an illness is to blame, or whether it was the doctor’s fault. If you choose to claim with us, we’ll do all the work to prove that your care was below the expected standard. All you’ll need to do is to share your version of the events while giving us access to your medical records so that we can gather all the evidence we need. When we compile this evidence, we’re looking to make sure that your case will pass both the ‘Bolitho Test’ and the ‘Bolam Test’; these tests look at what should have been done in your circumstances, and what other doctors would have done in the same scenario. If other doctors agree that your treatment should have been handled differently, then we can use this evidence. Any records, notes or letters you’ve kept will be helpful, and if you have the contact details of other patients or people who can act as witnesses, this will support your case.
The compensation we secure for you will be designed to take care of your past expenses, as well as your present and future medical care and treatment costs, as well as any other support, therapy or help you may need. In some cases, this might cover the costs of private physiotherapy, mobility aids such as wheelchairs, scooters and stairlifts. In some serious cases, your compensation may even allow for you to move into a new home that’s better suited to your needs if moving around is now more difficult because of your injury. Once you get your compensation, it’s up to you how you spend it, but our experts will be on hand to advise on what you’re likely to want and what future care or treatment you may need.
Unfortunately, there’s no definitive answer on how long a medical negligence claim takes to go through. It will depend upon your circumstances, the severity of your illness or injury, the impact it’s had on your life and how difficult it will be to prove that your medical care provider was at fault. In some circumstances, where the cause of medical malpractice is clear, and the resulting consequences are indisputable, a settlement may be offered within six months of the claim being brought. In very complicated cases, where a medical practitioner denies fault and the opinions of many other experts are required, a case might take years before either settling or going to trial. Given the complexity of medical cases, we cannot provide a set time for the completion of your case during your initial free telephone consultation. We can, however, provide some possible rough timeframes based on the information you can provide us with, as long as you understand that these may change depending on what evidence we find as we progress your case.
The amount of compensation you will receive if you experienced medical negligence will depend on your case.
When you take your claim forward, we will calculate the value of your claim based on several different factors. As well as general damages for the pain and suffering the negligence has resulted in, we will also consider areas such as the impact the negligence has had on your quality of life, the effect on your earnings and the potential need to pay for care in the future.
Once your claim has been valued, you will then need to prove your losses to the court to be successful. Financial losses are quantifiable in some cases, such as through financial documents and payslips. In other cases, you can show your medical treatment record to support your claims, such as those indicating the level of pain you were experiencing at the time.
In 2015 the NHS set aside almost a quarter of its £113bn annual budget to cover past and future cases brought against them for medical negligence and malpractice. This sum of £26.1bn will be used by the NHSLA (NHS Resolution) to deal with cases brought before them. In 2015, £1.1bn was paid out in compensation alone. Some would hope that as more cases come to light, medical processes and procedures will improve over time in line with their investigations and findings to help reduce their medical negligence bill. That said, the NHSLA foresees further payments amounting to £1.4bn over the coming year, £300m more than last year.
Where compensation is awarded due to acts of medical malpractice, no tax is payable. If you decide to invest the sum or have it looked after by an asset management company, you will need to seek their advice as to whether any interest generated is taxable, and how that ought to be handled.
Distressing as it may be to many when seeking compensation for illness or injury caused by medical malpractice, the practitioners responsible will rarely be criminally prosecuted or ‘struck off’ for their actions. But the law does provide an avenue for the prosecution of those responsible for medical malpractice, but only where the offence is ‘gross negligence manslaughter’. In this case, the negligence needs to result in a fatality, and the level of negligence involved needs to be proven to have been greater than that usually required to bring a civil claim. In simple terms, it needs to be proven beyond doubt that the medical practitioner responsible for the death of the victim caused the fatality by providing such a low standard of care that it can be deemed ‘grossly negligent’. In reality, this is determined by a jury who will, after hearing the evidence on both sides, will decide whether the level of neglect can be deemed to be grossly negligent and whether the medical practitioner responsible is deserving of a conviction for manslaughter.
Rarely. Of all the successful cases that are brought against the NHS Litigation Authority (NHSLA), 98% of them are settled outside of court or dropped without the need for a trial. Given what you’re likely to have been through already, the thought of appearing in court can be daunting and will likely feel like a source of more unneeded stress.
In the unlikely event that your case does go to trial, it will be to prove the negligence on your doctor’s part in court. Alternatively, it may be because your legal team believe that the compensation settlement the medical practice or the NHS have offered you is too low and does not reflect the extent of your illness, injuries and suffering.
The courts are aware of the costs involved in bringing such a case to trial and the impact this can have on the parties involved, and so an open and transparent approach is encouraged throughout the claim process. The hope is that this enables both parties to gain a proper understanding of the other party’s perspective and reasoning; all in the hope that those involved can investigate the claim thoroughly and efficiently in a way that allows them to settle the dispute as amicably as possible. To facilitate this, a strict programme of conduct is set out in the UK Court Rules.
Of these rules, those related to what’s known as the ‘pre-action protocol’ are built to reduce the odds of a trial being necessary in the first place. Similarly, the rules are supposed to be straightforward enough so that those involved in the provision of healthcare services can investigate where problems have arisen so that they might resolve patient complaints as honestly and as fairly as possible.
While providing some general guidance, the pre-action protocol aims:
Whilst providing some general guidance, the pre-action protocol aims:
It then sets out that its objectives are to:
In civil law, ‘negligence’ is considered a tort: an act or omission that causes harm to an individual’s property, reputation or interests.
Medical negligence is widely considered to be an instance where a healthcare professional has provided substandard care, or failed to carry out their responsibilities (fault) which has directly caused an injury or has caused an existing condition to worsen, leaving you or a loved one in their current position (avoidable harm).
The law of tort imposes a duty of care where one party (your doctor, clinician or other medical professional) could reasonably foresee that their conduct may cause harm to another. So in the event that your ‘interests’ are harmed through medical malpractice or negligence, you will need to prove that the injury or harm are due to the negligence of the healthcare provider, which is what we will help you with.