Clinical Negligence
Frequently Asked Questions
- Will I qualify for legal aid?
- Are there other financial options?
- Will my claim be statute barred?
- How does the Court assess my compensation?
- What is the process involved in making a claim?
- Do you recommend that I make a complaint?
Will I qualify for legal aid?
This firm has a franchise to offer legal aid in suitable cases. In order to qualify for legal aid, the applicant will be required to show that they are financially eligible. Their income and capital must be within defined limits as set by the Legal Services Commission from time to time. The Means Assessment is usually conducted by the Legal Services Commission on submission of a Means Assessment Form, which enables the applicant to provide all details of their capital and income together with their partner's relevant details, (if the applicant and his/her partner live together). The Legal Services Commission take into consideration outgoings in order to arrive at the net disposable income. Therefore, if you are in any doubt, we would urge you to make preliminary enquiries in order to discuss your financial eligibility with us free of charge.
In addition to financial eligibility, the applicant must also demonstrate that on the grounds of legal merit their claim justifies the granting of public funding. In clinical negligence claims a certificate is normally granted to investigate the preliminary stages of a claim in order to establish the likely prospects of success. Determination of the question of eligibility is ultimately a matter for the Legal Services Commission, who may be contacted at the following website address: - www.legalservices.gov.uk
In determining whether funding will be granted to the applicant, the Legal Services Commission will consider the potential value of the claim for damages if successful, and in addition the likely costs which will be incurred in the pursuit of the claim, to ensure that just and proportionate claims are pursued, so there is a suitable costs/benefit ratio to be considered. It is generally necessary for applicants to have pursued the NHS complaints procedure before submitting an application for public funding. There are however notable exceptions.
Click here to find out more about the complaints process.Are there other financial options?
In addition to legal aid (public funding) provided through the Legal Services Commission, you may be able to pursue a claim through one or more of the following options: -
- As a private fee paying client
- With the benefit of Legal Expenses Insurance
- Conditional Fee Agreement (“no win no fee”)
The firm has a national reputation for insurance litigation and is on the panel of many of the leading insurers. If you have the benefit of Legal Expenses Insurance you will not be eligible for public funding. It will be necessary for you to check whether you have the benefit of Legal Expenses Insurance cover to pursue clinical negligence claims. Such cover may fall within the terms of one or more of the following policies:
- Buildings Insurance
- Contents Insurance
- Motor Insurance
- Union cover
In suitable cases a Conditional Fee Agreement may be offered at the outset without preliminary investigation. However, depending upon the circumstances of your claim, it may be necessary to charge a preliminary investigation fee.
Will my claim be statute barred?
In an action for damages for personal injury, which includes clinical negligence, the limitation period is 3 years from the date of incident or from the date of knowledge (which is the date when you first should have realised that the care you received was not to an acceptable standard and you suffered significant harm as a result).
The limitation period is often a complex and problematic issue in clinical negligence claims, as the date of the commencement of the limitation period is not always easily determined. Treatment may have been ongoing for some time and only at a later date may the Claimant become aware that their treatment may have been negligent. It may not have been possible to question the adequacy of the treatment at the outset. Similarly, in the case of a failure to treat, similar considerations may arise because there may come a point when a failure to provide reasonable and necessary treatment is deemed to be negligent. Often the guidance of medical experts will be required to determine the date of any negligent practice. In summary, the limitation period will run when the Claimant was first aware of the following facts: -
- That the injury in question was significant
- That the injury was attributable to the acts or omissions which are alleged to be negligent
- The identity of the Defendant is known
There is considerable case law surrounding the issues relevant to determining the limitation date and whether a claim may be statute barred. These are issues which will be fully explored by the Solicitor who will give advice in connection with your claim.
How does the Court assess my compensation?
The aim of the Courts in valuing compensation claims is to restore the Claimant to the position he/she would have been in, had it not been for the negligence. It is important to distinguish in clinical negligence claims the underlying condition or illness from which the Claimant may have been suffering, and any effects that would have arisen from that condition or illness in any event when considering any exacerbation caused by negligence.
In general terms, the principal of compensation is not to punish the health professional for having made a mistake. It therefore follows that no compensation will be awarded to a Claimant who can show that there has been negligence in relation to the treatment, but cannot show that any damage has been caused as a result. It is necessary to distinguish between negligence and what the lawyers term “causation” i.e. the consequences of any negligent conduct.
In assessing damages, the Court will award a sum to compensate for pain and suffering, and any loss of amenity (the effect upon the Claimant in terms of their lifestyle). This is known as general damages. In addition, the Claimant’s financial losses are generally recoverable, provided they can be directly attributed to the negligence (as opposed to other factors such as losses incurred due to underlying illness/condition which would have been incurred in any event). Both past and future losses will be taken into consideration.
The financial losses (known as special damages), will vary with each case depending upon the circumstances, and your lawyer will give you full guidance about this aspect of your claim. Special damages include loss of earnings, treatment costs, aids and equipment, transport, additional voluntary family care, professional care etc.
In assessing compensation the Court will take into consideration whether a Claimant has taken steps to mitigate his/her losses, as it is the duty of the Claimant to reduce their damage or loss where appropriate. For example, a Claimant may be expected to look for alternative work if they are no longer able to perform their previous job due to their symptoms.
The Court will only award compensation in successful claims to allow the cost of reasonably incurred expenses, and it is therefore recommended that you discuss any unusual items of expense with your Solicitor.
What is the process involved in making a claim?
Preliminary investigations:
Following initial discussion with you, we would produce a statement on your behalf identifying the relevant issues and seek your authorisation for disclosure of your medical records, together with those of any treatment providers which may be appropriate.
The records would then be collated and reviewed by a member of our nursing or medical team, and retained by us pending instruction of a medical advisor, if appropriate, to consider the issues of liability and/or causation.
A chronology and list of issues will be produced initially in consultation with yourself, as those are areas which need to be reviewed by our clinical advisors. A preliminary opinion will also be taken on the limitation issue.
Once in receipt of a preliminary medical opinion, it may be necessary to conduct further enquiries, which might include collation of further records, before a view can be taken about the strength of the claim and the prospects of success. We may need to review any documentation which has arisen in connection with the NHS complaints process if that has been pursued before we have been instructed.
The preliminary investigation involves detailed consideration of your medical records and a comparison with the information which you have provided in your initial discussions and subsequently by statement. We conduct preliminary research in relation to your particular medical problem and liaise with our medical/dental/nursing in-house team before reviewing the need to secure further medical expert opinion.
We will need to consider which experts should be instructed to advise on the negligence issues. In addition, we may require additional medical input on the issue of causation, i.e. the consequences of the negligence.
Any expert chosen will normally consider the issues based upon the information provided in your statement and in the medical records. However, occasionally it may be necessary for the expert to examine you. We would make these arrangements on your behalf.
Once all breach of duty and/or causation evidence is available, we will be in a position to establish the prospects of success. It may be necessary in some cases to arrange a conference with a barrister and experts in order to evaluate the strengths of the claim. The timing of the conference(s) will depend upon the circumstances of the case, but will probably take place before the issue and service of Court proceedings.
Upon receipt of favourable expert evidence, we will prepare a formal Letter of Claim to the opponents, setting out the allegations of negligence as supported by the medical evidence and also dealing with the issues of causation.
The opponents have a period of 3 months in which to investigate the allegations before forwarding a Letter of Response. The response must indicate whether liability is admitted. If denied, the Defendants are obliged to indicate the basis of the denial with the aim of ensuring all steps are taken to settle the claim before the need to issue proceedings. In the event of a conflict which remains unresolved at that stage, the matter must proceed through the Courts.
Court Proceedings
Every effort will be made to secure an early admission of negligence, where appropriate. If liability is denied, the following steps are likely to be taken:-
- Proceedings are commenced by issuing a Claim Form accompanied by Particulars of Claim, which is a document setting out the allegations of negligence. You will be given the opportunity to review the Particulars of Claim before service of the documentation and normally the expert who has produced his report will be invited to comment upon the Particulars of Claim before service;
- The Defendants usually have an initial 28-day period from service of the Particulars of Claim in which to serve their Defence, although they may request (and are often granted) a reasonable extension of time for service of their Defence. The Defence will set out the Defendants’ arguments and the basis upon which they deny the Claimant's allegations of negligence;
- Court Directions are given following the service of the Defence. This is a procedure which normally involves Solicitors discussing the steps to be taken to progress the claim towards trial. It is a procedural step which does not always require the participation of the Claimant or Defendant. The Court will then set a timetable for the parties to ensure that the claim progresses to each stage within a set period;
- The first stages include disclosure of relevant documentation and the exchange of witness statements, which will normally take place on a mutual and simultaneous basis prior to the exchange of expert reports. It may be necessary to have several conferences depending upon the complexity of the case and the timescales involved.
- At pre-trial conference the Judge will also fix, in consultation with the parties, a suitable date for trial
Early Settlement
Every effort will be made by the parties to narrow the issues and to resolve the claim without the need to proceed to a trial. Only a small proportion of cases reach trial. The majority are either settled or abandoned beforehand, as there is a continual review of the evidence available to the parties. The possibility of Alternative Dispute Resolution (ADR) may be considered in your claim at some stage. This enables you and the legal representatives, with or without the assistance of medical experts, to have discussions of a confidential nature with a view to exploring settlement in advance of trial. This will normally take place once the evidence in the case for each side is known.
The steps outlined above give a general overview of the litigation process, although each claim will be conducted according to the issues which arise, there may be other procedural variations depending upon the requirements of the individual case.
Do you recommend that I make a complaint?
The complaints procedure is designed to enable members of the public to raise their concerns directly with the treatment provider. It is not a process designed for Solicitors. It is often useful for a person injured by a medical accident to make a complaint, since the hospital are obliged to reply to a written complaint and may provide an explanation or helpful information in connection with the concerns which may be of relevance in the claim.
The complaints process is often time consuming and if there is a possibility that it may not be completed before the expiry of the 3 year limitation period, you are recommended to seek advice from your Solicitor.
The NHS complaints procedure cannot address issues of staff discipline, nor can it address private treatment unless financed through the NHS. A complaint will need to be made promptly, normally within 6 months of the events concerned.
If you are seeking legal aid (public funding) it is a requirement that you pursue the NHS complaints procedure before applying for funding.
If you are dissatisfied with the response to your complaint, you have the right to request an independent review.
If you would like to complain about treatment which you have received by your General Practitioner, dentist, optician or pharmacist, you should contact your local Family Health Service Authority in the first instance.