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What is a Medical Accident?
If something goes wrong when you are having treatment, this is sometimes called a “medical accident” or “adverse event”. If your treatment has not worked or there have been complications, it does not always mean that there has been a mistake, or that someone is to blame. In some cases, you have to accept errors or complications as unavoidable risks of the treatment and the doctor or other health care professional would not be considered to blame.
“Clinical Negligence” is the legal term used to describe a medical accident where a patient has been harmed, not because of an avoidable complication, but because a doctor or other health care professional has not given the proper standard of care. It can include:
- Making a mistake during surgery
- Giving you the wrong drug; or
- Making the wrong diagnosis or delaying a diagnosis unnecessarily
Clinical negligence can also include not doing things that should be done, such as:-
- Not giving you the treatment you needed
- Not getting your consent to treatment
- Not warning you about the risks of a particular type of treatment; or
- Not making the correct referral
If you or a relative have been the victim of clinical negligence, you may be able to claim compensation.
What Should I Do if I Have Suffered a Medical Accident?
If you have been injured during treatment, you must first make sure that you are getting the right treatment, to try and correct the injury. You may also need to get a second opinion or ask your doctor to refer you to another hospital or clinic.
If you cannot work because of the accident, you should get advice about claiming benefits and how to deal with any debts that have built up. You should also get advice about benefits if your partner contributes to the household income but cannot work because of a medical accident.
What Action Can I Take?
After you have taken steps to take care of your health, you should think about what you want to do next. You should first think about what you want to happen. You may want:-
- An explanation and an apology
- To make sure that the same mistake is not made again (this may include a hospital changing its procedures or the person responsible being disciplined or re-trained) or,
How Do I Find Out More About What Happened to Me?
You should first get a detailed explanation from your doctor or from the health care professional who was involved in your treatment. The Doctor’s Professional Code of Conduct says that a doctor should give you an explanation of what happened during your treatment and, if necessary, an apology.
What If I Want to Complain About a Professionals Behaviour?
You may want to complain about an individual doctor or health care professional, for example, because you think they acted unprofessionally or are a danger to other patients. Most health care professionals are a member of a professional organisation. There are different organisations for different professions. For example, the General Medical Council for doctors and the Nursing and Midwifery Council for nurses, midwives and health visitors.
These organisations have the power to stop a health care professional from treating patients but will normally investigate only more serious complaints. Less serious complaints (for example rudeness) would normally be investigated through internal disciplinary procedures.
How Do I Claim Compensation?
If you have been injured physically or psychologically by a health care professional’s negligence, you may be able to claim compensation. The injury needs to be serious enough to make it worthwhile paying the costs of making a claim. It is probably not worth taking legal action if your injury:-
- Is fairly minor and you recover within a few days or weeks; and
- Hasn’t caused you to lose a lot of money, for example, earnings because of time off work.
It is important to understand that the Courts cannot:-
- Discipline a health care professional by, for example, stopping a doctor from practising.
- Force the hospital to change how it works; or
- Make a doctor apologise.
Having said that, it is increasingly common for health care providers to give open apologies once it has been established that they were in the wrong and it is reasonable to ask them to explain how they intend to improve practice for the benefit of other patients.
You can claim compensation against any health care professional who hasn’t given you the right care or treatment resulting in injury. This includes:-
Health visitors, nurses, midwives, physiotherapists, osteopaths, private practitioners, mental health care teams, laboratory services, dentists, medical or dental technicians, opticians and the ambulance service.
How Do I Pay For the Case
During our first meeting with you, we will provide you with an estimate of our likely fees and will advise you upon the funding options. These include the following:-
Before the Event Legal Expense Insurance
This is a form of Legal Expenses Insurance which is often an add-on policy to a general household insurance policy. You should check your insurance policies to see if these include Legal Expenses cover for a personal injury claim.
Your insurance company may want you to use one of it’s solicitors but it has been decided (by the Financial Ombudsman Service) that in complicated cases (such as many clinical negligence claims) the insured should have the right to choose a solicitor.
Public Funding (formerly known as Legal Aid)
From the 1st April, 2013, clinical negligence cases will no longer be eligible for public funding (Legal Aid) unless the claimant is a child with neurological injury resulting in severe disability which arises during pregnancy, child birth or in the eight week post natal period.
Conditional Fee Agreements (CFA) Otherwise Known As "No Win No Fee" Agreements
If we are satisfied that the prospects of success are good enough and no other form of funding is appropriate, we may offer you the opportunity to fund the case through a CFA.
If we work for you under a CFA, you will not have to pay for our charges if the claim fails or is abandoned. It is important however, to remember that there is more to the costs of a legal case then our charges alone. If the case is started in Court and then lost or abandoned, you may still have to pay the following:-
- Your opponents legal costs and,
- Your and your opponent’s disbursements (other expenses or charges such as fees for expert witnesses).
We can advise you upon arranging a policy of insurance to cover these expenses if the claim were to fail.
Trade Union Help
If you are a member of a trade union or similar type of organisation it may be able to help you with legal costs.
What Happens at My First Meeting With a Solicitor?
Our first meeting is likely to last for about 90 minutes. During this meeting we will find out more about your case, identify your concerns and objectives, provide an initial advice (about how to deal with your concerns, funding of the case and the strength and value of a claim). We will also advise you upon what action needs to be taken and by when. It will be helpful to see any medical records, complaint letters or other papers which support your case.
How Do I Prove Clinical Negligence?
A claim for clinical negligence damages can only succeed if we can establish (with the benefit of supportive medical expert opinion) that the conduct of the health care provider would not have been approved of by any responsible body of opinion in that discipline at that time.
It is therefore a defence for the health care provider to show that they acted in accordance with a practice rightly accepted as proper by a responsible body of medical people skilled in that particular field and this defence will succeed even if something went wrong with your treatment.
This therefore means that if the medical person who treated can show that they complied with an accepted medical practice, the claim will fail. We therefore need to prove that no responsible health care provider would have treated you as this one did.
Because clinical negligence cases involve both medical and legal issues, we will need to get a report on the medical issues from a medical expert skilled in the particular kind of treatment which you received.
Having established that you were the victim of clinical negligence, if your claim is to result in an award of compensation, we will need to prove that it is more likely than not that it was this negligence which caused the harm or loss which you went on to suffer.
Who is the Defendant?
If your claim arises from treatment in an NHS hospital then the hospital will be the Defendant rather than the individual medical person who treated you.
If your claim is directed at a family health practitioner such as a GP, Dentist, then the claim will be brought against the individual. This is also the case if the medical person treated you on a private paying basis.
It may be that even after the medical accident you continue to receive treatment from the person responsible. In this event the medical practitioner should not discuss the case with you.
How Soon Should My Claim be Started in Court?
Your claim must be started in Court within 3 years of the date of your medical accident. There are some specific circumstances which your solicitor will discuss with you.
If the injured person dies before the expiry of the appropriate three year period the proceedings have to be started in Court within three years of the date of death.
Different rules apply to children (those under the age of 18) and those of unsound mind (those incapable of managing and administering their property and affairs by reason of mental disorder). Children and persons of unsound mind are described as being “under a disability”. In the case of children the three year period starts to run from their 18th birthday. In the case of a person of unsound mind the case must be started in Court within 3 years of the date when that person ceased to be under a disability or died (which ever occurred first).
What Can I Claim For?
If your claim succeeds you would generally be entitled to both general damages and special damages.
General Damages - those which are not capable of precise mathematical calculation including for example pain, suffering and lost amenity. This can cover physical and psychological injury, loss of life expectation and loss of the enjoyment of life (including interference with sex life, holidays, sports and hobbies).
You may be entitled to damages arising from handicap in the open labour market. The purpose of this award if to compensate you for potential difficulties in obtaining another job due to the injuries sustained in the medical accident. It is sometimes possible to recover damages arising from reduced life expectation.
Special Damages - are the items of loss that can be specifically calculated and represent your financial loss from the date of the accident until the date of trial or settlement. These may include, for example:-
- Lost earnings
- The cost of someone looking after you
- Paying someone to perform services you would otherwise do for yourself (eg: DIY or gardening).
- Medical expenses
- The increased cost of transport
- The increased cost of a change of diet
- Loss of pension entitlement
- The increased cost of laundry
- The cost of aids and equipment
- Additional fuel costs due to being at home for longer periods
In bereavement cases:-
- Funeral expenses
- The cost of a memorial
You are under a duty to keep your losses to a reasonable minimum. This means, for example, that if your medical accident caused you to be absent from work, you will need to show that all reasonable steps were taken to get back to work as soon as you were fit to do so.
Compensation in Fatal Cases
It is possible to continue a claim for clinical negligence damages to which a deceased was entitled, at the time of death. These claims are normally brought by the personal representatives of the deceased so that Letters of Administration or a Grant of Probate should be obtained before the claim is commenced.
Damages recovered by the estate are distributed in accordance with the deceased’s will or the intestacy rules (specifying those relatives to benefit in the event of no will being left).
In addition specified dependants can bring claims (through the personal representatives) for loss of their financial dependency on a deceased who died as a consequence of clinical negligence. The dependency has to be a personal family relationship with the deceased. The specified relationships include a partner or a civil partner.
How Will You Investigate My Case?
We will begin by considering all the relevant documents which you can provide to us. If it is necessary to begin the case in Court we will have to tell the opponent about the existence of documents which you have, have had or which are/have been under your control and which are relevant to the issues in the case. Please therefore provide us with all relevant documentation.
We will then take your detailed statement identifying your concerns and objectives. Obtain relevant medical records to establish what happened in the medical accident, the injuries sustained, the treatment of them, and your previous medical history.
We will identify appropriate medical experts to report on negligence and the impact of negligence upon you.
If the medical evidence suggests the case is strong we will move on to deal with the value of the claim. This will probably involve arranging for you to be examined by an appropriate medical expert to prepare a report on condition and prognosis. Depending upon the injury you suffered, we may need to obtain reports from experts dealing with the following:-
- Occupational therapy
- Information technology etc
In the meantime we will write a Letter of Claim to the health care provider. This letter will deal with the following:-
- A summary of the facts on which the claim is based including the adverse outcome
- The main allegations of negligence
- A description of your injuries and present condition/prognosis
- Details of your financial losses with an indication of the heads of damage to be claimed
Should it then be necessary to begin proceedings in Court we will provide you with further advice upon the Court process.
How Long Will it Take For the Case to Finish?
It is very difficult to give precise information about how long your case will take because each case depends on its circumstances.
If your case had to be decided at a Court hearing it could well take as long as 3 years from start to finish. In some cases (where the evidence is complicated or the prognosis unclear) it may take even longer than that.