Clinical Negligence: Information on making a claim guide

 

Broomhead & Saul accepts instructions for all clinical negligence cases including dental negligence, cases involving minors, and fatal accident claims. We understand how a person can already feel that they have been mistreated at the point where they consider pursuing a claim, and we combine providing expert advice with the prioritisation of customer care. We also focus on supporting the needs of our local community and residents offering a first class service with a personal touch. Broomhead & Saul do not accept any Personal Injury or Clinical Negligence clients without meeting the client in person first.

Below is some key information to help guide you through the stages of a clinical negligence claim:

Time limits for bringing your claim

Generally, you must start formal legal proceedings for clinical negligence within three years of the date of the injury or of when you had knowledge that the mistake occurred. In exceptional circumstances, it may be possible to issue your claim at court outside the three year limit and we will advise if this exception applies to you.

If you are pursuing a claim on behalf of a child, legal proceedings must be started before their 21st birthday.

Special rules also apply to people who do not have the capacity to conduct their own affairs but the

general rule is that, while they do not have that capacity, there is no time limit for bringing a claim.

Funding your claim

There are several ways in which a claim can be paid for. We will discuss your options in more

detail at your initial meeting but the main forms of funding are:

  • Legal expenses insurance

You may have legal expenses cover as part of your home, car or other insurance that will pay for all, or part, of the legal costs. We will need details of all the relevant insurance policies you held at the time of your injury, as well as any current policies, to enable us to check whether the policy provides cover to investigate a clinical negligence claim.

  • Trade union funding

If you are a member of a trade union, you may be eligible for trade union funding. We will need details of your membership so we can find out whether funding will be available for your claim.

  • Private funding

If you fund the claim yourself, we will ask you for some money on account at the beginning of the claim and invoice you periodically. You will be charged for the time we spend working on your claim, based on an hourly rate that will be fixed at the beginning of your claim and reviewed regularly. You will also incur a number of expenses, known as disbursements, such as experts’ and barristers’ fees.

  • Funding through a Conditional Fee Agreement

We may be able to take on your claim under a funding agreement known as a Conditional Fee

Agreement. This can also be called a “No Win No Fee” agreement. Before offering such an agreement, we need to understand the facts behind your claim and its strength and you may be asked

Who will handle your claim?

Your claim will be handled by a small team of specialist, local lawyers. All team members will be familiar with your file, and you can feel secure in the knowledge that when you call the person answering will know who you are, and the circumstances of your incident.

 Investigating your claim

Before going to Court, we need to establish the strength of your claim and whether it is likely to

succeed. The early tasks, which will take a number of months (sometimes a year or more), we will focus on gathering evidence and obtaining the professional opinions of independent experts and, where appropriate, a barrister.

Gathering evidence

To assist with establishing your claim, we will:

  • Prepare witness statements based on your recollection of events;
  • Gather the relevant medical records from your GP, and any hospitals and private doctors that you attended; and
  • Obtain opinion(s) on your claim from independent medical expert(s) to assess whether the treatment or care received fell below an acceptable standard.

Proving your claim

Three factors must be proved before a claim can be established:

  • A “breach of duty” by the healthcare provider(s) caring for you. This is when the treatment or care you received fell below an acceptable standard;
  • An injury or a worse than expected outcome; and
  • The injury or outcome was caused by the breach of duty (this is called “causation”).

A “breach of duty” may include:

  • Failure or delay in diagnosis;
  • Failure or delay in instituting appropriate investigation/care;
  • Failure to take proper account of investigations/ test results;
  • Failure to take account of a previous medical history;
  • Failure to take appropriate care when operating;
  • Premature discharge from hospital; and/or failure to obtain a patient’s consent.

Deciding to go ahead /Pre-action protocol

At the end of the investigative period and before commencing formal Court proceedings, a

number of things, collectively known as the “preaction protocol”, need to happen. First, a Letter of Claim is sent to the Defendant (the doctor or NHS Trust against whom the claim is being made) setting out details of the allegations of negligence and the harm the negligence caused.

Within four months, the Defendant must provide a Letter of Response setting out details of its reply

to the allegations. The Letter of Response may give a full or partial admission of liability, or it may

simply set out the Defendant’s response to the claim without making any admission. A final decision about whether to continue the claim is then made in light of the Letter of Response.

 Valuing your claim (“quantum”)

The purpose of compensation is to return you, as far as possible, to the position you would have been in but for the negligence. If your claim is successful, you will receive compensation for:

General damages – an amount of money to cover pain, suffering and “loss of amenity” caused by an injury. General damages apply to both physical and psychological injuries or injuries that are a combination of the two.

Past losses, sometimes called “special damages” e.g. earnings, travel and medical expenses, additional travel costs; and

Future losses e.g. care that you will need in the future, changes to your accommodation, aids and

equipment.

Settlement out of Court

Most claims settle before they reach trial. The Court encourages parties to do this by way of

written settlement offers, mediation and round table meetings. We will guide you as to whether we think an offer made by a Defendant is reasonable. A settlement offer must be considered carefully because, if you refuse it and then recover the same amount or less at trial, a Judge can order costs penalties against you. It may be appropriate for you to make an offer to the Defendant to settle your claim and we will advise you what a reasonable settlement would be.

 If the claim is headed towards trial

Generally the trial is scheduled to take place within 12-18 months of a Claim Form being issued at

Court. A lot of detailed preparation work is done during this period, including reviewing the defence,

gathering and listing relevant documents, finalising and serving witness and expert evidence, arranging meetings of experts, and calculating the full value of your claim.

Trial

Where parties cannot reach agreement, the claim will be decided by a Judge at trial. The trial Judge then decides who should win, on what grounds. If the Claimant is successful, the Judge will decide how much compensation should be paid.

We hope you have found the information helpful, and if you would like to discuss a potential clinical negligence claim please telephone:

Andrea Pollard on 01823 447 438

Danielle Silsby on 01823 447 416

Joanne Margetts on 01823 447 416