Accident & Emergency negligence claims

How much compensation can you get for medical negligence?

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.

How can you prove medical negligence?

Medical negligence cases are legally and medically complex. If you have been seriously injured by medical negligence and want to claim compensation, it is essential that your solicitors specialise in clinical negligence and understand what is required, both legally and medically, to prove your claim.

The law says that a medical practitioner is negligent if they have acted in a way that no responsible body of medical opinion would regard as acceptable. That means that if the care given was of a reasonable standard the court will not regard it as negligent, whatever the result.

Where healthcare is found to be (legally) negligent, then the claimant (the person making the claim) must prove that their injury was caused or significantly worsened by the negligent care. This is important because the patient may already be very ill when they receive negligent medical care. In those circumstances, they must prove that their injury (and its financial consequences) would have been avoided or greatly reduced if correct treatment had been given. This aspect of the medical negligence claim is known as ‘causation’. Causation must be proven, even if negligence is admitted, for the claim to succeed and compensation to be awarded.

Negligence and causation must be proven by supportive opinions from medical experts. We instruct experts in the same field of medicine as the negligent care to tell us whether the care that was given was of a reasonable standard. If negligence is proven, we ask medical specialists in the type of injury suffered, to confirm whether our client’s injury was caused or made worse by the negligent treatment, or would have been reduced or avoided with correct care.

The medical experts make their assessments by examining the evidence:

• the best evidence is often contained in the patient’s medical records which were written contemporaneously (i.e. at the time of the treatment);
• reports of investigations carried out by the NHS trust, GP practice or Healthcare Safety Investigation Branch (HSIB);
• evidence from a coroner’s inquest or pathologist if the patient died;
• witness statements from our client and other witnesses;
• any statements from the defendant’s witnesses – the doctors, nurses and other healthcare providers – which have been disclosed by the defendant healthcare professional or the NHS organisation that employed them.

The experts may also back up their opinion with other reputable sources of professional information, such as:

• guidelines published by The National Institute for Health and Care Excellence (NICE), relevant professional training bodies, such as the Royal College of Obstetricians and Gynaecologists (RCOG), or guidelines from the NHS Trust where the doctor worked;
• research studies published in peer-reviewed, medical professional journals, such as the BMJ.

They will also draw on their own clinical experience when giving their opinion about whether the treatment given was to a reasonable standard and was responsible for causing the injury.

How to make a medical negligence claim

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.

Is there a time limit for claiming medical negligence compensation?

The law states that, in most cases, someone who has been injured as a result of medical negligence has three years from the date of the negligence which caused the injury to issue court proceedings. If they fail to issue court proceedings within that time, their claim will be statute barred, meaning that they lose their right to bring a claim.

There are the following exceptions to the three-year rule:

• if a child is injured before they are 18, their three-year deadline expires on their 21st birthday. In other words, their time doesn’t start to run until they are 18;
• if the injured person is mentally disabled (lacks mental capacity) then their time doesn’t begin to run at all, unless their mental capacity is restored;
• where the injured person has died as a result of negligent treatment, the three-year time limit expires three years after the date of their death;
• if the injured person couldn’t have known that they had been injured by negligence, the court may allow a valid claim to proceed. In these circumstances, the claim must be issued within three years of when the injured person first became aware (or should have suspected) that they had been injured by negligent care;
• the court has a general discretion to extend the time limit in cases where none of the above exceptions apply, but only does so in exceptional circumstances.

Regardless of your time limit, we recommend that you contact us as soon as you can after the injury has taken place, even if at that stage you are only considering whether to make a claim. By contacting us early:

• you may avoid later problems with deadlines;
• we can advise you how to collect and preserve essential evidence;
• we can ensure you have the best chance of securing your entitlement to full compensation for your claim.

How long do medical negligence claims take?

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.

Will I need to go to court to claim medical negligence compensation?

Our highly experienced medical negligence lawyers are recognised by Legal 500 and Chambers as experts in handling clinical negligence claims. Whilst we cannot guarantee that any particular claim will settle out of court, we take great care in investigating and preparing each claim that we take on. Our clients’ claims usually settle successfully without the need for a contested trial.

Occasionally, cases can only be concluded by a formal court hearing, such as where:

• NHS Resolution, the NHS’s defence organisation, decides to test the courts’ approach to a particular type of claim by taking a case all the way to court;
• there is a point of law in a claim which needs clarification to avoid confusion is future cases;
• where there is strong disagreement between the medical experts for each side about whether treatment amounted to negligence or caused the injury, needing the court to decide;
• where there is a factual dispute about what happened between the parties which must be decided upon by the court before liability can be determined.

Where our client’s claim is complicated by any of the above, we may advise our client that for the case to proceed it must go to a court hearing. Our caring and highly experienced solicitors and barristers ensure that our clients are always kept informed and supported.

Even in non-contested cases, there will be occasions when the case is brought for shorter hearings before the court, such as after a settlement for a child or brain injured adult without mental capacity takes place.  In these cases, the lawyers for both sides present the agreed settlement to the court for the judge’s approval.

How to fund a medical negligence 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.