Medical Negligence Compensation & Claims Advice

Medical professionals should be the people you can trust most but unfortunately, just like any other line of work, there are people working in the medical industry who are sometimes less than professional. Of course, this is not acceptable and if you feel that you have been ill-treated by a medical professional then you have every right to make a claim for compensation.

If you or a family member want to make a claim for medical negligence, then one of the first questions on your mind will almost certainly be – how much compensation am I likely to get? This is quite a tricky question to answer conclusively since no two cases will be exactly the same. That said, it is possible to provide an estimate based on the type of claim you want to make.

How much compensation for medical negligence you receive will depend on the severity of the damage caused and how much it affects you, both now and in the future. The compensation provided is for any pain and suffering as well as for any money lost through your inability to work and earn money.

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Types of Claims

When it comes to compensation claims for medical negligence, there are a few different categories of claims that people make. These include –

  • Misdiagnosis – This is obviously an extremely serious type of medical negligence, especially in the case of potentially fatal and debilitating illnesses. If you have been misdiagnosed multiple times by the same medical staff then you could be due a very hefty compensation payout.
  • Poor Treatment – Unfortunately this is more common than it should be in the NHS, especially amongst elderly patients. If you or a family member has been poorly treated by a medical professional, then you should certainly pursue a claim for medical negligence. The amount you receive will depend on the type of mistreatment that took place and how long of a period it was for.
  • Surgical Mistakes – Surgeons are under a lot of pressure so it's understandable that not every surgery will be a success. However, if you feel that a surgeon performed below standard and you want to make a claim, then you certainly have the right to do that.

Factors that affect the amount of compensation you will receive

How much compensation for clinical negligence you receive will depend on a few key factors. These include:-

  • The severity of your injury or illness
  • What impact this has had on your day-to-day life and how it's affected your ability to work
  • How qualified those treating you were
  • The long-term impact on your health and happiness
  • How many times you were misdiagnosed
  • The conditions in the hospital you were treated

If you want to find out more about medical negligence cases and the process of claiming for medical negligence, read our complete guide here.

How can Cute Injury help you?

We are a regulated, professional claims management company that has vast experience in dealing with medical negligence claims.  You can have peace of mind knowing that our solicitors:

  • Are on the referral panel for AvMA (Action for victims of Medical Accidents) as well as the referral panel for the Law Society’s clinical negligence referral panels; and
  • Belong to APIL (Association of Personal Injury Lawyers).

  With these credentials, you can have peace of mind knowing that your claim will be in safe hands.

Making a compensation claim for medical negligence

If you suspect that you have been a victim of medical negligence or malpractice then this practical guide will take you through the process of how to claim for medical negligence.

Reasons to Make a Claim for Medical Negligence

There are several reasons why you may be seeking to make a medical negligence claim. You could be seeking an official apology from a healthcare provider, or looking for improvements to be made for certain medical services.  You could be seeking financial compensation to give you the means to pay for the additional support you now need due to the injury you have suffered.

An Apology

The first step to take in order to try and get an apology is to lodge a formal complaint to either the hospital or care service provider you hold responsible. This is fairly straightforward as all healthcare providers have a complaints procedure in place which can be accessed on their website. By obtaining that apology you may also raise awareness as to how the current system just isn't working and bring about changes that reduce the risk of what has happened to you happening to others.

Seeking Financial Compensation

The aim of making a medical negligence claim with a view to receiving financial compensation should be to help pay for an additional care and support you now need. Financial redress aims to put you back into the position you were prior to sustaining whatever medical mishap had befallen you. The first stage of this process is to consult a solicitor which is best done sooner rather than later due to the medical negligence claims time limit. Your solicitor will help you by;

  • Gaining access to all your medical records
  • Obtaining expert medical opinions which are both unbiased and independent regarding the causes of your illness/injury/disability etc
  • Establishing from the outset whether or not you have a viable medical negligence claim and whether an award of monetary compensation is likely.
  • If it turns out that you aren't able to establish a claim for medical negligence then this investigation will at least provide you with an increased understanding of what might, or might not have happened to cause you or your loved one to be in the current predicament.

How to Make a Medical Negligence Claim

Securing the services of an experienced solicitor who is a specialist in the field of medical negligence claims is vital. These kinds of cases can be extremely complex so you need the right person in your corner from the off. Your solicitor will be able to explain everything to you in a language you understand and will also be a source of support through every step of the process.

Funding Your Case

There are different funding options that will be available to you, which are:

  • Private Funding
  • Conditional Fee Agreement
  • Trade Union Funding

Out of these options, the most popular by far is a conditional fee agreement (CFA), usually known as a No Win No Fee* arrangement. Not only does this relieve you of the stress of having to find the funds for your solicitor's fees, it also gives you assurance that your solicitor will do their very best for you because if you don’t win your case, they don't get paid. While it used to be unusual to find a solicitor to take on a medical negligence case on a No Win No Fee* basis, this position has changed drastically in recent years which is a great help to those who wouldn't be otherwise able to make a claim. Remember your solicitor must provide you with a client care letter which will set out the firm’s fee structure and procedures after your initial consultation. Your solicitor also has a duty to keep you updated on costs throughout your claim.

Getting Your Reports

Once the funding options have been decided upon the next step is to gain access to any relevant medical notes or records pertaining to your case from any hospital and/or health practitioners involved. These reports will be used by a team of independent, medical experts to prepare your report. Your solicitor can obtain access to these records once you have given permission to them.

Your Medical Negligence Action

There are three distinct issues which are addressed during a medical negligence action as follows;

Breach of Duty -This determines whether the care given to the claimant fell below a reasonable standard. This will be judged according to both the medical knowledge and the standards that were prevalent at the time the negligence is alleged to have occurred.

Causation - The link between the breach of the duty of care and the injury that has been sustained.  Did the medical professional’s conduct make a significant contribution to the current state of affairs?  It has to be proved that there is no other cause of the disability.

Quantum - The level of monetary compensation that you should be awarded based on the severity of the illness or injury that has been sustained.

How Long Does A Medical Negligence Case Take?

Medical negligence claims can be a complex process as such, the time it takes to finalise is very much dependent on how complicated your case is as well as other determining factors.  These can range from:

  • Experts being available to prepare your report promptly;
  • Finding a court slot if it is decreed that the proceedings will go to trial; and
  • The circumstances of the defendant.

What are the time limits for bringing a medical negligence claim?

You normally have 3 years from the alleged date the incident occurred or from the date when you first became aware of the repercussions of this incident. When it is a child who was the victim of medical negligence, the 3-year limit does not begin until they reach the age of 18. It always recommended that you start the ball rolling as soon as possible when everything is likely to be still fresh in your mind. If the injured party has a significant intellectual impairment, whether as a result of the negligence or not, the general 3-year time limit does not apply so even if this person is over 21 and the incident occurred when they were born it is still worth seeking a solicitor’s advice.

Making a Medical Negligence Claim on the Behalf of a Child

If you are pursuing a medical negligence claim on a child's behalf it is possible they will be eligible for, Community Legal Services funding (CLS), which used to be known as Legal Aid. There are two parts to these criteria which have to be met for a claim to be funded via this method, which is merit and means. The commission will have to be satisfied that there are reasonable grounds in existence for starting an investigation and, where it is appropriate, for the case to progress to a full claim. The child's financial circumstances are also relevant as with the child being the claimant is it his or her means that are assessed, not their parents.

There are effectively two Stages to Funding

  • Initial costs involved from obtaining the medical records, the expert's reports and, if necessary, gaining the opinion of a barrister; and
  • Ongoing costs incurred through the various stages that lead up to, and include, a trial if is the barrister's opinion that the investigation should proceed and become a full claim.

Mental Capacity and 'Litigation Friends'

You must possess the necessary mental capacity in order to make a legal claim for yourself. If a person lacks the mental capacity they can have a claim lodged on their behalf by a third party.  This person is referred to as a 'litigation friend'. As a child cannot by law lodge their own claim they will always have a litigation friend, usually one of their parents. When a litigation friend is in place it is they who will both choose and subsequently instruct the solicitor and act in the claimants best interests.  It is the claimant's financial means which determine whether or not his/her legal costs will be covered or not and not the litigation friend.

Providing the Evidence in a Medical Negligence Claim

Once everything has been put in place, such as funding, the next step is your solicitor requesting copies of all relevant medical records and notes from your GP and the hospital. She will then check them over to ensure that they are complete and in the correct order before forwarding them to the independent expert/s to prepare their report. Your records remain strictly confidential during this time.

The Expert Reports

The independent experts will usually consist of professionals such as obstetricians, paediatricians, midwives, neurologists and radiologists. It is essential at this early stage that your solicitor correctly identifies the experts needed to assess your claim.  If these experts prepare a report that finds the medical treatment received was of an acceptable standard and in accordance with that deemed as normal practice there will be no claim. If, however, their report concludes that the victim received sub-standard medical treatment and that a 'breach of duty of care' occurred then the claim will progress to the next stage.

Your solicitor should possess the understanding of the report in order to be able to explain the report fully so you fully understand what it contains. It could be appropriate at this time to also have present at the meeting a barrister and those experts who prepared the report.  They will be happy to answer any of your questions and if you are unhappy with their report you are entitled to request a second opinion from a different expert within the same professional field. However, you will need to discuss the funding options with your solicitor.

Providing the Evidence Needed

If the expert's reports are supportive of your claim your solicitor will then contact the defendant setting out the full details of your claim. This will include such details as your allegations and the approximate amount of compensation you are seeking, the latter being dependent on the extent and nature of the claim.

The defendant then has 4 months to respond to this correspondence and their response will often give you an early indication of the outcome of the claim and could possibly even include an admission of liability.  If this is the case and the defendant does admit liability at this early stage it eliminates the need for a trial.  Even if court proceedings do begin many cases are still settled out of court when the two parties agree on the level of compensation to be awarded.

What Happens When You Get a Split Trial?

There is a possibility that the trial could be split. When this happens the first step is to consider liability for causation and breach of duty. If liability is then proven or admitted to, the compensation will then be considered at a later date. There are several reasons for this including the following;

  • It would be inappropriate to decide on the total amount of compensation should the case relate to a child still developing and their future prognosis or needs cannot be accurately predicted due to their age.
  • Even though there is evidence against them the defendant/s does not admit liability voluntarily and thus it is viewed as a waste of time and legal costs to fully investigate the total amount of damage before the right to them is fully ascertained.
  • If the liability split trial is successful there may be an interim payment made to meet the claimant’s immediate needs while the claims full value is being investigated.

The one main advantage of a split trial is that you can be certain of the final outcome.

Compensation for Medical Negligence

The monetary compensation is awarded to the claimant in order to provide them with the financial resources needed to obtain the specialist care and support they need and to give them the chance to have a choice when it comes to this provision.

What is medical negligence compensation awarded for?

The compensation is awarded to place the victim in the same position as they would have been had the negligence not taken place. However, this is a very grey area as it is impossible to do this for somebody who, due to their impairment caused by the negligence, had every aspect of their daily life affected and will do so for their rest of their life.

Helpful Tips to Assist You with Your Claim

  • Keep an accurate record of any additional expenses incurred due to the impairment caused by the medical negligence; and
  • Keep all the receipts pertaining to these expenses and affix them to a book or diary in the relevant sections so the records and receipts are together.

How the Compensation Award is calculated

There are numerous factors to take into consideration when a compensation award is being calculated. The future expenses which are specific to the needs of the individual are calculated by following advice from a wide range of health experts including occupational therapists, rehabilitation consultants, physiotherapists and psychologists. The amount of compensation awarded should reflect the following;

  • Both the capital and annual costs needed to provide appropriate accommodation as well as any adaptations which are needed to meet the victim's needs;
  • Any loss of earnings when the negligence has compromised the victim's employment potential;
  • The cost of both adequate care and any specialist equipment;
  • The cost of aids needed to assist mobility and transport;
  • Leisure and social pursuits;
  • Any other factors which are relevant to that specific case including among others; the continuation of education, physiotherapy, occupational therapy and speech and language therapy; and
  • Any cost involved with administering that award through the Court of Protection

A compensation award is usually split into two separate elements;

  • A lump sum - which is a capital award aimed at meeting past expenses which have been accrued and any further expenses in the immediate future.
  • Periodical payments -these can be made in advance on a quarterly, bi-annual or annual basis. These provide a guaranteed tax-free, index-linked annual income that is intended to meet any future costs as they arrive on the predicted basis.

What Happens to the Compensation once it has been awarded?

If the compensation awarded is for a child then the court will usually hold the money for them until they reach 18. After this it can be paid out for that person to take control of it, the assistance of a case manager is often used in such instances. If any individual who is awarded compensation is incapable of managing their own financial affairs properly the money will be administered by the Court of Protection. However, parents or spouses are usually involved in the awards management along with any decision-making relating to it.

 

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CALL US FREE ON 08000 10 60 66 or use our CLAIM CALCULATOR

Cute Injury can help you begin your potential claim, get in touch with us today

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