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:
In order to prove a medical negligence claim, there are two tests that we must apply. First, we must show that the medical staff breached their duty of care to you. This means showing that the standard of care you received was below the standard expected of a reasonable medical professional and that no other responsible professional would have treated you in the same way. Secondly, we have to establish "causation". This means showing that the substandard treatment you received caused you an injury on the balance of probabilities (over a 50% chance). Causation is split into two different parts; factual causation (what would/should have happened had the breach not occurred) and medical causation (had the appropriate steps been taken, on the balance of probabilities, your injury would have been avoided).
In order to satisfy these tests, we will need to request copies of your medical records and instruct an independent medical expert to advise on whether the care you received was appropriate. If this report is supportive, it is likely that we will need to instruct further experts to advise on whether the substandard care caused you an injury. If all the reports are supportive, we will write to the Defendant (the organisation/person whom the claim is against) setting out the allegations in detail and ask them to admit liability (i.e. that they were negligent).
Every claimant's circumstances are different, depending on the type of injury sustained and how the injury may have affected his or her life. The law seeks to compensate based on the severity and impact of the injury. The amount claimed must relate to the harm caused directly by the negligence.
There are two main types of "damages" (ways in which you were negatively affected by your injury) that you are entitled to claim as part of your clinical negligence compensation.
The court can award money for expenses you have already incurred as a direct result of the negligence (referred to as “past losses”). For example, the travel costs in attending hospital to treat injuries, or the costs of employing a carer.
The court can also assess costs you may have to incur in the future, for example for equipment, carers or therapies to help you cope. The courts also seek to address whether the harm caused will result in other future loss to you. For example, if you are now unable to work due to the injury, you may be awarded compensation for loss of earnings which you would otherwise have earned at work. These past and future expenses incurred are called "Special Damages".
Compensation is also awarded for the injury itself and the pain and suffering caused. It is difficult to quantify how much injuries are worth financially. There is guidance, however, on the 'value' of particular injuries detailed in the Judicial College Guidelines. Courts will consider this guidance together with previous cases concerning similar injuries to evaluate compensation to be awarded in each case. This compensation for pain and suffering is termed "General Damages."
In respect of past losses and general damages, the courts may also award interest based on the fact that money lost could have been put to other uses or saved during the period between incurring the expense and the date compensation is awarded.
To succeed with a clinical negligence claim we need to establish both breach of duty and causation. We need to show that the care you received was substandard and it has caused you an injury. In the majority of cases, expert evidence will need to be obtained to support any allegations made.
At Enable Law, we carry out detailed risk assessments at the very beginning of the case to ensure there are reasonable prospects of succeeding with the claim. If we do not consider there are reasonable prospects, we will advise you of this and explain the reasons why. If we consider there are reasonable prospects of succeeding with the claim and we accept instructions to act for you, we will continue to risk assess the claim at various stages; for example, upon receipt of the medical records, the expert evidence and a response from the Defendant. We will keep you fully updated throughout the case as to what we consider to be the strengths and weakness of your case. We will always act in your best interests and will explore all aspects of a claim to ensure we can obtain the best possible result for you. However, as clinical negligence is a complex area of law which relies heavily on medical evidence, there can never be any guarantees that the case will succeed.
Clients are often worried about making a claim because of what it might cost. Concerns about the cost should not put you off seeking advice about your claim in the first place. When you contact us we will give you straightforward advice about how your claim could be funded and answer any questions.
There are a number of ways to fund your claim. The basic principle is that if you win your case, the Defendant will pay you compensation and cover the majority of your legal costs. If you lose, we will make sure that you have an appropriate funding arrangement in place to cover your costs, (except if you fund your case privately).
Lots of people have legal expenses insurance that will fund a claim. This will usually be included in a household buildings or contents policy and provides an amount of money that will cover the legal costs whether you win or lose. If you send us copies we can look into whether your policies cover this for you.
Many cases are funded by a Conditional Fee Agreement (CFA) often referred to as a "no win, no fee" agreement. Under a CFA, if your case is unsuccessful you will not have to pay any of our legal fees. You can also take out insurance cover to fund additional expenses, such as the cost of obtaining medical records and reports from medical experts. If your case is successful you have to pay a proportion of the insurance premium from your compensation. If you lose, there is nothing to pay. If the case is successful everyone bringing a claim under a CFA also has to make a contribution to their legal costs. We will keep you advised as the case progresses and can assure you that there will be no hidden costs.
Legal Aid (also referred to as “public funding”) is available but only for children who have suffered a neurological injury caused during pregnancy, childbirth or within the first eight weeks of their life. We are one of only a small number of firms accredited to carry out work under a certificate of public funding. For children who are eligible, this is the best way to fund your claim.
If you cannot fund your claim through any of the above options, your only option is to fund it privately. However, we would usually agree to carry out the initial investigation for a fixed fee and if you win your case, you will recover the money you have paid from the Defendant.
Enable Law has one of the leading specialist medical negligence, personal injury and mental capacity teams in the UK.
Friendly and approachable, straightforward and constructive in our advice, our clients can rely on us in good times and bad. We aim to be caring and supportive in the service we provide to you.
We have extensive experience in a wide range of claims against both the NHS and private health providers. We have members on both the Law Society and AvMA (Action against Medical Accidents) specialist clinical negligence panels.
We have good working relationships with a number of local NHS Trusts which means that some disputes can be resolved quickly and sensitively.
"The firm is excellent and has a very progressive approach. Its service cannot be faulted." Chambers UK.
"Their knowledge of the particular topics is excellent, and they balance a professional approach with kindness and compassion to clients who may have had very painful and traumatic experiences." Chambers UK
With all clinical negligence claims there is a three year period (known as the limitation period) within which you have to commence Court proceedings by issuing a Claim Form at court. This period begins from the date of the negligence or the date you were first aware of the negligence. For example, if you underwent a substandard operation on 12 March 2015 (and knew or should reasonably have known it was substandard at that time), Court proceedings would need to be commenced by 11 March 2018 to prevent your claim being statute barred (out of time). However, if you were not aware that the operation was performed in a substandard way until 15 April 2016 when (for example) further medical investigations revealed this to be the case, Court proceedings would need to be commenced by 14 April 2019.
There are exceptions to these rules. If you are under 18, then the three year period does not start until your 18th birthday (you will therefore have until your 21st birthday to start Court proceedings). If you do not have capacity (this will require a medical assessment) then the three year period does not apply. The Court also has a discretion to waive the limitation period in limited circumstances (for example, if you have a psychiatric injury which has prevented you from bringing a claim at an earlier time).
If you have concerns about the treatment you have received, it is preferable to seek advice at the earliest opportunity. If you have any questions about whether you can bring a claim, please speak to a member of our team.