Prosthetic myths busted

Each claimant’s compensation is calculated in accordance with mandatory rules based on their individual circumstances.

The law says that compensation for medical negligence should put the injured person back in the position that they would have been in if the negligence hadn’t happened, in so far as money can.

In a medical negligence claim, the amount of compensation depends on:

• the injury or disability that was caused by negligent care, and its severity;
• the cost of meeting the individual’s needs arising from that disability in the past, present and future, e.g. for care, home adaptations, therapies and equipment;
• the financial losses that were caused by the injury, such as loss of earnings;
• how long it is expected that the person will have the need or suffer the loss.

Our clients often benefit from different types of compensation, including:

• Interim payments – advance part payments of compensation, obtained as soon as possible after liability is established, to ease financial hardship and meet urgent needs, such as therapies, home adaptations and care. 
• Lump sum payments – most final settlements include a lump sum payment, either as the full compensation payment or to cover capital costs when combined with a PPO.
• PPO – periodical payment orders (PPOs) provide severely disabled claimants who have lifelong needs for care with the guarantee of lifelong, index-linked, tax free annual payments. PPOs can also be paid to cover other ongoing costs, such as case management or special educational placements.

Read more details on how much you can claim and what compensation can pay for.

If you think that you or a family member have received negligent medical treatment which has caused serious injury or disability, we recommend that you speak to one of our friendly, experienced clinical negligence team as soon as possible. You can contact us by telephone or by email. Your enquiry will be handled confidentially and preliminary advice in relation to pursuing a claim will be given free of charge.

Our solicitors will ask you to tell us  briefly what has happened, advise you about the limitation deadlines (time limits) which apply to your claim and whether we are able to help you investigate your claim.

Once our initial investigations have taken place, we will notify the defendant (hospital or doctor) of your intention to pursue a claim and invite them to respond, giving them an opportunity to admit liability, before court proceedings are issued.

If liability is admitted, we will enter judgment and apply for an interim payment as soon as possible to meet any urgent needs that you may have as a result of the negligently caused injury.

If liability is disputed, we will discuss with you the further steps that we need to take to progress your claim.

At all times our approachable, experienced clinical negligence lawyers will ensure that you are informed of any developments and understand the process. Your solicitor and our friendly support staff will always be available to discuss any concerns or queries that you might have along the way.

The duration of a medical negligence claim depends on the individual circumstances of the client’s case. The claim is likely to take less time to conclude where:

• liability is admitted by the defendant (NHS hospital or doctor);
• the injured person’s injuries have stabilised and their prognosis (long-term outcome) is clear;
• the injured person’s needs, the costs of meeting those needs and other financial losses are straightforward and easy to assess clearly.

Circumstances which make the claim more complex and therefore take longer to resolve include:

• where the defendant disputes that they were negligent or that the medical treatment given (even where admittedly negligent) caused the client’s injury;
• where the injured person is a child whose disability is expected to change with their growth and development over time;
• where multiple experts in different disciplines are needed to assess complex injuries and the likely long-term outcome.

An initial full or partial denial of liability by NHS Resolution or other medical defence organisation does not necessarily mean that the injured person’s claim will fail. In more than half of our successful cases in 2019, we overcame initial denials of liability by the defendant, resulting in settlements for our clients.(from making a claim page)

We work hard to secure early admissions of liability and substantial interim payments so that we can begin to alleviate financial hardship and provide essential care, respite, specialist equipment, therapies and home adaptations long before the claim has settled. With liability judgments secured and interim funds in place, the individual and their family are able to focus on rebuilding their lives whilst we concentrate on valuing and negotiating settlement of the claim.

Legal Aid – for brain injuries at birth

As top-rated specialists in cerebral palsy and other serious neurological disability claims, we have access to Legal Aid funding for eligible clients. Where the child’s case is funded by Legal Aid, the family can be sure that on the successful conclusion of the claim, their child will receive their full compensation without any deduction for legal costs. Where Legal Aid is available for a child with serious brain injury, we believe that it is in the child’s best interests for their claim to be covered by Legal Aid.

This form of funding is only available to those who have suffered a brain injury, such as cerebral palsy, at birth or within the first few weeks of life. The child must have suffered their brain injury in England or Wales, and they must not have substantial funds of their own. The parents’ finances are ignored for the child’s application.

 Legal Aid funding will only be given to a child where their claim is handled by a solicitor who has been approved as a specialist in cerebral palsy and child brain injury claims by the Legal Aid Agency.

 No win no fee – conditional fee agreement (CFA)

Where Legal Aid is not available, we act for clinical negligence clients on a conditional fee agreement (CFA or ‘no win no fee’) basis.  Just as the name says, no win no fee means that unless our client wins their case there are no legal fees for them to pay. If the case fails, we do not get paid for the time we have spent working on their case. Our client’s liability for disbursements (such as expert and court fees) and any entitlement the defendant might have to legal costs is paid by an after-the-event insurance policy.

CFAs make it easier for people to afford a legal claim because they do not have to pay any upfront charges. There are no legal bills along the way. They pay nothing if they lose their claim. If they win, nothing is payable until the end of the case.

 Legal Expense Insurance

If an injured person has legal expense insurance which was in place at the time that they were injured by medical negligence, their legal expense insurance policy might help with funding their claim. If you have legal expense insurance, you should let us know as soon as you are considering making a claim.

A medical examination is usually needed to assess our client’s injury.  Where our client has suffered multiple injuries or both physical and psychological injuries, they may need to be examined by specialists in each area. This is important to make sure that our client’s injuries are fully assessed and understood, so that they can be properly compensated.

If a medical examination is needed, we instruct the specialist and make the arrangements. We ensure that they have access to our client’s medical records and are aware of the background to the claim. The hospital or doctor against whom the claim is being made may also ask for our client to be examined by their medical expert.

If a baby, child or teenager under the age of 18 makes a claim for compensation for injuries caused by medical negligence, their claim is made on their behalf by a ‘litigation friend’. This is usually a parent or guardian. As the child’s solicitor, we have a responsibility to make sure that all decisions relating to the claim are made in the best interests of the child. To do this, we work very closely with the child’s family. Some important decisions, such as settlement agreements or the amount of money that is allocated to a child in a claim involving more than one claimant, must be approved by the court.

We are specialists in helping families obtain full compensation for children who have been very severely injured leaving them with permanent disability and lifelong specialist needs. [These claims are complex and must be handled by specialist solicitors.] Our expert children’s claims service includes a dedicated Court of Protection team who help our clients protect, budget and access their compensation via deputyship and trusts, and an SEN team to ensure that their special educational needs are met. Find out more about how we help families, children and teenagers with children’s claims.

In medical negligence claims, compensation for serious injury and disability usually includes a sum for the injury, and  sums to compensate for financial losses and the cost of meeting the needs that arise from the disability. Our expert knowledge and experience means that we recover maximum compensation in claims for catastrophic and life-changing injury.  We also ensure that our clients receive their compensation in the way that is best suited to meet their needs. In claims involving severe disability, compensation may include early interim payments, lump sums or lifelong, index-linked, annual payments.

Depending on our clients’ injuries, individual circumstances and needs, we can recover compensation to pay for:

• pain, suffering and disability;
• care (professional or provided by the family) and assistance;
• case management;
• therapies, such as:
  • physiotherapy;
  • occupational therapy (OT) ;
  • speech and language therapy (SALT);
  • psychological counselling;
  • pain management;
• assistive technology (IT);
• rehabilitation;
• home adaptations or additional costs of suitable accommodation;
• specialist equipment and aids;
• adapted vehicles, wheelchairs and additional transport costs;
• special educational needs;
• loss of earnings/pension;
• medical treatment and surgery;
• prosthetics (after amputation);
• Court of Protection costs;
• other losses and expenses arising from the injury.

Where medical negligence caused someone’s death, compensation may be claimed by the deceased’s dependants and on behalf of the deceased’s estate. Compensation in a fatal injury medical negligence claim can be paid for:

• the deceased’s pain and suffering and disability prior to their death;
• the deceased’s financial losses and expenses arising from their injury prior to their death;
• funeral costs;
• a statutory, fixed sum bereavement payment;
• a dependant’s loss of dependency on the deceased’s income;
• a dependant’s loss of dependency on other services provided by the deceased, such as child-care, driving, shopping and housework, DIY etc.

HSSIB is the acronym or shortened name for the Health Services Safety Investigations Body (HSSIB). 

In October 2023 the Healthcare Safety Investigation Branch (HSIB) which investigates patient safety incidents,  will change its name, its status and the way it works and will become the Health Services Safety Investigations Body or HSSIB. 
HSSIB will continue the work of HSIB’s national investigations programme but will not take over HSIB’s maternity investigations. These will be carried out by the new Maternity and Newborn Safety Investigations Special Health Authority or MNSI. This is because the Health and Care Act 2022 gave HSSIB increased powers, beyond those used by HSIB. This will allow HSSIB to conduct patient safety investigations using ‘safe space’ protection, which is not appropriate for maternity investigations into patient safety incidents which have caused serious harm to mothers and newborn babies. 
From October 2023, when HSSIB becomes operational, it will be an independent, non-departmental, arm’s length body (ALB) of the Department of Health and Social Care (DHSC).  HSIB hopes that the new HSSIB’s new working procedures and independence from the NHS and DHSC will help reassure patients and staff involved in patient safety incidents that their investigations are unbiased and don’t attribute blame, but will help the whole healthcare system learn from the system failures and mistakes that contributed to the patient’s injury. HSIB believes this will help improve patient safety.

HSSIB will work differently from HSIB:
•    HSSIB will be run by a board of executive and non-executive directors who will establish and take forward the strategic aims and objectives of the new organisation. HSSIB’s new board of directors will be accountable for the way HSSIB is managed, carries out its investigations, and for its performance. 
•    HSSIB will have the power to:  
o    access patients’ medical records without their consent;
o    compel people and organisations (such as NHS trusts) to cooperate with patient safety investigations;
o    obtain any evidence that it considers relevant for an investigation;
o    conduct investigations under ‘safe space’, meaning that evidence that is gathered can be protected from disclosure, even to the affected patient or their family.  
•    HSSIB will not carry out maternity investigations. These will be taken over by the Maternity and Newborn Safety Investigations Special Health Authority or MNSI.

If you have been contacted by MNSI, HSIB, HSSIB or NHS Resolution after the birth of your child or in relation to the mother’s maternity care, we strongly advise you to contact us on +44(0) 118 952 7201 immediately for free, confidential, specialist advice before you respond. Your child or your family may be entitled to substantial compensation. 

If you have suffered a serious injury as a result of somebody else’s negligence (breach of their duty of care), we may be able to help you make a claim for compensation.

Depending on the circumstances of your accident and the severity of your injury, we may also be able to help you claim compensation:

• where someone else was responsible for causing the accident but you were also partly to blame;
• where your injuries were caused by an untraced driver in a ‘hit and run’;
• where you were the victim of criminal violence.

You can make a claim on behalf of:

• yourself – for your own injuries;
• an injured child who is under the age of 18 (as their litigation friend);
• an injured adult who does not have mental capacity to claim for themselves (as litigation friend);
• the estate of someone who suffered a fatal injury (as their personal representative/executor);
• for your loss of dependency on someone who suffered fatal injury.

The vast majority of our clients’ serious injury claims are settled without the need for a court hearing (trial). Our clients very rarely need to go to court.

Our personal injury specialists are highly experienced in investigating and assessing the strength of each client’s case. From the outset, and throughout the claim, we advise our clients clearly and honestly about their prospects of success.

Court proceedings are issued (started) in many cases but this does not mean that the case will end in a trial. There are many reasons why court proceedings might be issued:

• to protect our client’s right to claim compensation if their limitation deadline (time limit for making a claim) is approaching;
• to force the defendant (and their insurers) to take the claim seriously;
• to push the defendant to admit liability (fault);
• to push the defendant (and their insurers) to make an interim payment to our client;
• so that we can obtain a court judgment, guaranteeing our client’s right to compensation, if liability has been  admitted;
• to encourage the defendant to enter into settlement negotiations;
• to avoid unnecessary delay by setting a timetable, which is overseen by the court, for the steps that must be taken to bring the case to a conclusion.  

We work hard to prove each client’s claim, based on evidence of the circumstances of their accident and the impact of their injury. We encourage cooperation with the defendant’s insurers and negotiate the best possible settlements for our clients. On the rare occasions when a claim cannot be settled without a court hearing, this will be because:

• there are serious, insurmountable challenges with the evidence, or disagreements between experts in a case, which need to be decided upon by a trial judge;
• the defendant’s insurers are using the case to test the court’s approach to a point of law.

In the following circumstances, the law requires a judge to approve an out-of-court settlement, for the protection of those involved:

• where at least one of the injured claimants is a child under the age of 18;
• where the claimant does not have mental capacity to manage their own affairs;
• where at least one of the claimants in a fatal accident claim is a child or lacks mental capacity.

In these cases, the approval hearing will be a short hearing at which the lawyers for both parties explain the circumstances of the case and the settlement terms to the judge. In most cases our client will be expected to be in court during the hearing, accompanied and fully supported by members of our legal team.

The duration of a serious injury claim depends on the individual circumstances of the client’s case. Claims take less time to conclude if:

• liability is admitted by the defendant or their insurer;
• the injured person’s injuries have stabilised and their prognosis (long-term outcome) is clear;
• the injured person’s needs, the costs of meeting those needs and their other financial losses can easily be assessed;

Claims are more complex and may take longer to resolve where:

• the defendant or their insurer disputes that they were negligent or responsible for causing the client’s injury;
• an injured child’s disability and associated needs are expected to change as they grow and develop over time;
• the injured person has suffered catastrophic injury, such as severe brain injury, or major trauma and needs rehabilitation;
• multiple experts in different disciplines are needed to assess complex injuries and the likely long-term outcome.

Our nationally acclaimed serious injury specialists have helped hundreds of individuals and families whose lives have been devastated by accidents on the roads, at work, abroad or elsewhere. We understand the impact that a sudden, severe injury and its financial consequences can have on an individual and their family.

We work hard to secure cooperation with defendant insurers, to provide immediate needs assessments and timely funded rehabilitation for our clients to maximise their recovery in the all-important period immediately following an injury. Wherever possible we also secure interim payments to ease our clients’ financial hardship long before their claims have concluded.

By taking the time that is needed for the client’s rehabilitation and the careful assessment of their long-term needs, we can be confident that each client receives the full support and the compensation they deserve.

The amount of compensation that an injured person receives in a personal injury claim depends on a number of individual factors:

• the severity of the injury;
• the extent of any permanent disability caused by the injury;
• the impact that the injury has on their ability to live independently, study, work, or participate in leisure activities;
• additional needs arising from their injury, such as care, specialist equipment or an adapted home;
• their life circumstances before the accident;
• their predicted lifespan;
• litigation risk factors, such as contributory negligence.

Depending on the client’s injury and the way it affects their life, their claim may include compensation for:

• pain, suffering and disability;
• rehabilitation:
  • funded directly by the defendant’s insurer;
  • funded from interim payments;
  • future rehabilitation costs funded from final settlement;
• costs of care;
• case management;
• costs of medical or surgical treatment;
• therapies:
  • occupational therapy (OT);
  • physiotherapy;
  • speech and language therapy (SALT);
  • psychological counselling;
  • pain management;
• loss of earnings and pension;
• additional costs of adapted accommodation;
• assistive technology (IT);
• prosthetics (after amputation);
• specialist equipment and aids;
• extra costs of transport or adapted vehicles;
• special educational needs (SEN);
• Court of Protection deputyship;
• funeral costs (fatal cases);
• bereavement damages (fatal cases);
• loss of dependency on the deceased’s income or services (fatal cases).

Compensation is carefully structured to make the best provision for the injured person’s needs. There are rules protecting compensation for children or adults who lack mental capacity. Compensation may be paid in one or more of the following ways:

• Rehabilitation Code funding – paid directly by the defendant’s insurer to pay for the injured person’s rehabilitation;
• interim (advance) payment whilst the claim is ongoing;
• a lump sum settlement;
• a periodical payments order (PPO) providing lifelong, annual, tax free, index-linked payments for essential costs, such as care and case management, or Court of Protection fees.

An interim payment is a part-payment of compensation which is paid to the injured person, in advance, whilst the claim is ongoing. We can usually secure an interim payment from the defendant’s insurer where they have admitted liability (accepted fault) for our client’s injury.

We use interim payments to help the injured person and their family, who may be suffering financial hardship as a result of the injury. Where insurers are not willing to provide Rehabilitation Code funding, we sometimes obtain interim payments to ensure that our client receives the rehabilitation, case management and therapies that they need straight away.

Interim payments may be used to meet any genuine need, but it is important that the injured person and their family understand that the sums that they have already received as interim payments are deducted from their final compensation at the end of the claim.

Depending on the client’s injury, an interim payment may help meet their needs for:

• case management;
• rehabilitation;
• personal care and assistance;
• physiotherapy;
• occupational therapy;
• speech and language therapy;
• psychological counselling;
• adapted accommodation;
• wheelchairs;
• transport;
• prostheses (after amputation);
• assistive technology and other specialist equipment;
• trials of supported independent living.

By understanding and targeting provision for our clients’ rehabilitation and other essential needs early in the claims process, we help restore our clients’ mobility, independence and ability to participate fully in family and social life, long before the claim has concluded.