We know that seeking legal support and making a claim can be a daunting experience. Our experienced team is always on hand to talk you through the process and answer any questions you may have. As many of our clients have similar queries and concerns, we’ve provided answers to some of the most commonly asked questions below:
DATA PROTECTION STATEMENT Whilst the information you provide us is confidential we must observe the requirements of the Data Protection Act 2018. We will therefore process personal data you provide us such as names and addresses and sensitive data, such as information about your injury (or details of the person you represent) in order to carry out your instructions. When receiving a new enquiry this information will be stored on our internal systems based in the UK so that our expert solicitors can use it to work out whether we can help you and discuss your claim further with you. This will be stored for a period of 12 months but longer if you become a client of Enable Law. Enable Law, which is part of the Foot Anstey Group, is the data controller of all of the information that we hold about you. If you instruct us we will share some of your information such as your name, address and matter description with Foot Anstey LLP. This is to comply with our legal and regulatory requirements and in order to protect our clients and businesses from conflicts of interest. For example, one reason for this is to ensure that we do not act in matters where Foot Anstey LLP are already instructed in an adverse position and equally to ensure that Foot Anstey LLP does not accept instructions to act against clients of Enable Law. You should also be aware that in the normal course of business we may use third party suppliers to ensure that we are able to comply with our obligations when providing our services to you. This may include sharing personal data that we hold with these third parties. Limited generic and statistical information (anonymised wherever possible) will be shared between Foot Anstey LLP and Enable Law for quality and client improvement purposes. More details will be provided to you in our terms of business if you instruct Enable Law in due course. In order to help ensure that we keep the affairs of our clients confidential, emails leaving our systems are routinely monitored by specialist software which is designed to protect against the risk of misaddressed emails. This involves the transfer of relevant email metadata (including recipient email address, subject heading and salutation) to the software provider’s secure datacentre and this information does not leave the EU. This data will only be used for this, and not for any other, purpose. For more information about the use of your personal data, please firstname.lastname@example.org
There is a legal obligation to keep your medical records, whether they are NHS or private medical records, and everyone has the right to see their records.
You do not always need to make a formal written application if you want to see your records and there is nothing to prevent healthcare professionals from informally showing you your own records. You can therefore make an informal request to see your records during a consultation or by phoning your healthcare provider.
Copies of your records are however only supplied if a formal application has been made. This application needs to be made in writing specifying your personal details and the treatment to which the request relates; it does not however need to explain why you want to see your records. Your records will usually be provided free of charge.
Access to your records can however be refused if:
The record relate to, and identify, someone else;
When applying for another person's records (for example a child's), you would gain access to information they gave confidentially;
Healthcare professionals believe that information contained in the records would cause serious harm to your physical or mental health.
Cases involving claims against NHS Trusts for negligence are dealt with by NHS Resolution (formerly called the NHSLA, or NHS Litigation Authority). NHS Resolution was set up by the Government to deal with claims against NHS Trusts.
The NHS Resolution acts in a similar way to how an insurance company would act for an individual. Every year, each NHS Trust pays a premium to NHS Resolution so that they have cover in the event of a claim being made against them. This is similar to a car owner paying a premium to an insurance company to cover them in the event of a car accident.
Money paid out in compensation to victims of negligence comes from the premiums paid by the Trusts to NHS Resolution. Each NHS Trust is required to have cover in place to pay any claims, just in the same way that a car owner is required by law to obtain appropriate insurance cover.
A claim for compensation will be paid by NHS Resolution on behalf of the Trust you are claiming against (“ the Defendant Trust”). A Trust pays an annual premium to NHS Resolution irrespective of whether you decide to pursue a claim or not. There are similar organisations representing GPs, dentists, etc.
There are all sorts of reasons why medical care can be unsatisfactory. Health problems are often complex, so sometimes things go wrong and it is no-one's fault. Many procedures carry known risks, but doctors should tell you about these risks so that you can decide whether or not to go ahead with the treatment.
When things do go wrong as a result of negligence, there can be a wide range of reasons. Sometimes it is only possible to say what went wrong and not why it went wrong. In other cases, it can be very clear why the treatment went wrong – for example if systems are not followed properly or if the appropriately trained staff are not in place.
Healthcare providers usually have their own systems to monitor when things go wrong. This provides an opportunity for them to learn from mistakes. You might find that a hospital has produced its own "serious incident" report into your care. We often use those investigation reports to help us identify whether there might be a clinical negligence claim.
If your case has the support of our medical experts, who have advised that your treatment was negligent, the case will proceed against the Defendant. Whilst there is always a possibility of having to give your evidence in court, in reality very few medical negligence cases get as far as trial. The majority of cases of injury caused by negligent treatment are settled by a payment of damages without the need to attend court. This can happen at any time during the course of a claim, even up to the day before a trial is due to start.
The court is, however, required to approve all cases which involve damages awarded to children or to those who do not have the ability to conduct their own affairs, and this takes place by way of a short court hearing.
It is very important for clients to receive an apology if they suffered harm as a result of the care they received. The NHS is becoming more proactive in saying sorry, and we can help you attempt to secure such an apology. This can be obtained by pursuing the complaints procedure or during the course of bringing a claim. You must bear in mind that "saying sorry" is not a legal admission, and does not mean that a claim for compensation will be successful. There are specific legal tests that must be satisfied to be successful in a claim. There is also no guarantee that the practitioner concerned or their legal team will agree that an apology is appropriate. We will however do all we can to secure an apology on your behalf.
A doctor should never treat you differently if a claim is made against them. A doctor's duty is to provide – at all times and to the best of their ability – a competent standard of care in a professional and courteous manner. Should they do otherwise, they risk their professional reputation and may be referred to the General Medical Council who will assess their fitness to practice and may take further action if necessary.
It may be reasonable however for a doctor to request that one of their colleagues treats you in order to avoid further upset if you have made a claim against them – and you can do likewise, particularly if you have lost trust in their treatment of you.
In practice the majority of clinicians accept that individuals have the right to make claims, and are able to continue to act in accordance with the professionalism expected of them.
In order to bring a successful clinical negligence claim, you require expert evidence to support your case. If you do not have supportive expert evidence a compensation claim cannot proceed.
We choose the experts who advise in your case very carefully from a database of approved and ranked experts. We constantly keep this database up to date following the most recent instructions and by discussing experts' performances with others in the firm. We discuss our choice of expert and their specialism with you.
When the expert is instructed, we provide them with a full copy of all of your medical records which have been sorted and reviewed by us. The expert will also be provided with a copy of your witness statement to explain your side of the story. The expert will then carefully review your case and provide a report.
Experts' reports can be unsupportive of your case for a number of reasons, which may turn on medical evidence alone or the contents of the medical records and your own evidence.
We will ask you to carefully review any expert's report obtained in relation to your claim and let us have your comments. Depending on the reasons why the report is unsupportive and your comments, it may be necessary to either ask the expert some further questions to address the queries you have or to hold a conference with the expert (and any other experts instructed in your case) and a barrister to explore the reasons for the expert's view.
Sometimes, clients find that, once their treatment has been comprehensively reviewed by an expert, even if the expert is unsupportive, they understand the reasons for this and are able to accept that their potential claim has been fully investigated but that a court would be unlikely to find in their favour. This alone can help to provide some closure.
Sometimes clients are unsatisfied with the expert's performance and feel that the expert has not fully considered all of the aspects of their treatment or they simply want a second opinion. Depending on how the case is funded, it may be possible to obtain funding for this. More often than not though, it will be necessary for the client to fund the second opinion themselves. If the claim is ultimately successful, the cost of this can be recovered from the Defendant. If the claim is unsuccessful, the cost cannot be recovered.
If the second report is supportive, the claim may subsequently proceed on the basis of the second expert's view and can still ultimately be successful.
It may be you are worried that your claim will not reach a conclusion before your death perhaps because you have an illness that has shortened your life expectancy. If you should die whilst still pursuing your claim, the right to continue with the claim passes to 'your estate', which means your personal representative will be able to bring the claim in your place. If you leave a Will this will usually be your executor, and if you don't leave a Will it will usually be the family member who administers your estate.
There is a three year time limit within which to bring a clinical negligence claim (i.e. to issue a claim form at court). If you die within the three year time limit and no claim form has been formally presented to court, the clock begins to run again and your personal representative then has a further three years in which to bring the claim. We would always recommend seeking legal advice as soon as possible as it can take a long time to investigate a potential claim.
If your claim had included sums of money to compensate you for future financial losses such as your future loss of earnings or the costs of personal care, these sums won't be recoverable if you die before the claim concludes. However, if you have a partner, children or other close relative who is financially dependent on you or physically dependent on the care you provide to them, they may be able to recover compensation for their 'loss of dependency' if you die as a result of the negligence.
You cannot get a doctor struck off by bringing a medical negligence claim, or force any disciplinary action to be taken. Only the General Medical Council (GMC) can do this in very serious cases, although their investigation is sometimes triggered by a complaint from a patient. Any complaint made to the GMC will not stop you from instructing us to investigate a claim as this can be done at the same time. When a medical negligence claim is pursued, it usually results in an internal investigation into the actions of that doctor/hospital being undertaken and can provide an opportunity for lessons to be learnt. Depending on the result it can lead to doctors being retrained, or internal procedures being improved. Please visit the GMC website for more information.