Fatal injury medical negligence claims

In England and Wales, the law says that compensation for medical negligence should put the injured person back in the position that they would have been in but for the negligently caused injury, in so far as money can. This means that compensation is calculated carefully to reflect the injured individual’s personal circumstances. Whilst the way in which we calculate damages follows certain mandatory principles and practises, the differences in our clients’ injuries, pre-injury lifestyles and post-injury needs means that no two claims will be the same.

The compensation that an injured person receives from a medical negligence claim depends on:

• the type and severity of the injury/disability that was caused by the negligent treatment;
• the cost of meeting the individual’s additional needs which arise from that injury, such as the cost of full-time care, necessary adaptations to housing, therapies, specialist equipment;
• the financial losses that arise from that injury, such as loss of net income from being unable to work;
• the length of time that the injured person will be affected by those costs or losses - for example, loss of earnings may be calculated to retirement age, whereas costs of care may continue to the end of life.

Financial costs and losses will include past losses – from the date of the injury to the date of settlement – and future loss, beginning at date of settlement and projected into the future. Past losses will also include interest.

All annual (recurring) costs, such as loss of earnings or the cost of care, are multiplied by a ‘multiplier’. The ‘multiplier’ is a figure which represents the number of years that the cost or financial loss will be suffered. It has been adjusted by a ‘discount rate’ which is set by the government. The discount rate allows for the fact that the claimant (injured person making the claim) receives their lifetime’s worth of compensation money early and can invest it and earn interest on it. The aim of the discount rate is to adjust the compensation paid for future losses to ensure that the claimant is neither over nor under-compensated.

At Boyes Turner we take great care in the way we investigate and gather evidence of our clients’ needs and losses to ensure that our clients receive the maximum possible compensation for their injury. By ensuring that we understand each client’s individual needs, we are able to claim the highest levels of compensation and negotiate the best possible settlements for them.

Where our client’s life expectation is long or uncertain, it is natural for their family to worry about whether there will be enough money to pay for their care in the long-term future. Where guaranteed provision for lifelong care costs is a priority, we negotiate settlements which combine lump sum payments with guaranteed, index-linked, lifelong, annual payments (known as periodical payment orders or PPOs). The lump sum gives the client flexibility and helps pay for capital costs. The PPO annual payments ensure that the client will always have a regular income which covers the cost of their care. Payments made by PPO are tax-free.

Each settlement is skilfully negotiated and carefully structured to ensure that the compensation settlement is a source of financial security, certainty and peace of mind for our client and their family.

Where negligent medical treatment has resulted in the patient’s death, depending on the individual’s circumstances, their family (as individuals or via the deceased’s estate) may be entitled to compensation for:

• the deceased’s pain and suffering from the date of negligent injury to the date of death;
• any dependent family members’ ‘loss of dependency’ on the deceased’s income or services;
• funeral costs and other costs arising from the deceased’s injury and death;
• a statutory bereavement payment.

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;
  • what you think went wrong;
  • about your injuries;
  • how the injury has affected various aspects of your life.
• advise you about the limitation deadlines (time limits) which apply to your claim;
• advise you whether we are able to help you investigate your claim.

If we are able to help you, we will;

• ask for your medical records or authority to apply for them on your behalf;
• discuss funding methods for making your claim and take steps to secure the best method of funding;
• take a detailed statement from you which captures your recollections of the events which led to the injury and are relevant to the claim;
• instruct medical experts to advise on breach of duty (to prove negligence) and causation;
• we may also arrange a meeting with the experts and a barrister (counsel) to which you will be invited to attend.

Once our initial investigations have taken place, we will;

• discuss with you the strengths and weaknesses (the merits) of your claim;
• discuss with you our strategy for pursuing the claim;
• discuss any further evidence that is needed to support your claim;
• 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.

Our nationally acclaimed clinical negligence solicitors have helped hundreds of individuals and families whose lives have been devastated by medical negligence and we understand the impact that these tragic events and their financial consequences can have. 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.