|
How Does A Basic Medical Negligence Claim Work?
There are 2 aspects to a
claim - negligence (sometimes called liability, or fault) and causation.
Negligence:
ie. was the doctor [or other practitioner] at fault in the way in which s/he
advised on or gave treatment? If a reputable body of similarly experienced
practitioners would not have given the same advice/treatment and the
injury was avoidable then you probably have a claim. We will need details
from you as well as from the relevant medical records. As we are experienced
Solicitors in this area of law sometimes we can tell if there is no
case after reading the records. Otherwise an independent medical expert will
need to see your account and the records to prepare a report describing what
happened, what treatment should have been given, what treatment actually was
given, and what was wrong about it.
We choose independent
experts who we know will give us an impartial opinion because we have used
them before, or they have been recommended to us. As we have considerable
expertise in all aspects of medical negligence claims we can draw upon a
large database of tried and trusted experts.
Causation: If
the doctor [or other practitioner] was at fault then we also have to show
that if it had not been for the faulty treatment, the patient would have made
a better recovery. The expert has to explain what would have happened if the
right treatment had been given, and how the wrong treatment made a
difference.
Compensation:
You will hear lawyers refer to this as damages. There are two types of
damages:
[i] General Damages - these are for the pain and suffering
which result from the injuries sustained because of the faulty treatment, and
the effect on life and lifestyle
[ii] Special Damages – these are the financial losses and
expenses which occur as a direct result of the injuries sustained because of
the faulty treatment. This include past and future loss of earnings,
the cost of special aids and equipment, cost of care [family or commercial],
extra travel costs etc.
Time For Bringing A
Claim: A claim resulting from any injury must be started in court
within 3 years of the date you were injured otherwise you may not be able to
take proceedings at all. There are exceptions to this rule for children and
people who are under a mental disability. The 3 year period will be treated
as starting from the time you first suspected that your problems were due to
your medical treatment in a clinical negligence case.
Investigation
Timetable: We must initially take a detailed statement from you (or a
family member/friend) about what happened. This is because when we obtain
the first expert report or reports the expert will usually not meet you.
They can therefore only know what you say about the case from your
statement. It is also much easier to take a statement earlier on when your
memory is likely to be better.
After we have taken a
statement we must obtain your medical records (including any x-rays). We
generally advise clients that it takes about 3 months from writing for the
records until we receive them. After that it takes between 3 months to 1
year to obtain a report from an expert or experts. It is only following our
receipt of those reports that we can give confidant guidance as to the
likelihood of success of your claim.
If the first expert is able to comment on both
negligence and causation we will then be able to draft a formal letter of
claim to the Defendant. This could be the Hospital Trust (if the injury
occurred in an NHS Hospital), a private consultant, a GP or dentist or other
practitioner as the case may be. We will invite the Defendant to admit
liability (and, if we are able to value your claim and you wish to, we can
make an offer to settle your case for an appropriate sum of money).
However it may be that the first expert cannot properly
comment on causation because this requires a different medical speciality and
in these cases we will need to obtain a report from a second (and possibly
more) expert before we can send a letter of claim to the Defendant.
Quite often, before we can properly value your claim
will also need to obtain further expert reports from people such as
occupational therapists (if you now need aids and equipment),
physiotherapists, speech and language therapists, psychologists/psychiatrists
and other therapists (if you need further treatment), surveyors, valuers and
architects (if you have special accommodation needs) and carers.
If the Defendant is prepared to admit liability
(responsibility) for your injuries we can hopefully avoid having to start
Court proceedings and can settle your claim for you with the minimum of
fuss. However where this is not possible then we shall start proceedings
and, ultimately if a satisfactory settlement cannot be reached with the
Defendant, your case will have to be resolved by a Judge at trial. Before
that stage is reached we will have exchanged your expert evidence with any
that the Defendant has obtained and the opposing experts will have met to try
to resolve any areas of dispute between them.
On the whole it is quite rare for a case to be settled
at a hearing before a Judge as the parties can continue to negotiate with
each other throughout and can also use other alternate methods of resolving
the claim if they are appropriate.
What Alternative Methods Of Resolving My Claim Are
There?
Mediation: In 1995 the Government set up a
pilot scheme to see if medical negligence claims against the NHS could be
resolved by mediation. One of the Team members was involved in this pilot
and was the first solicitor in England to settle a medical negligence claim
by mediation. An independent mediator is appointed and a date and venue for
the mediation is arranged.
At the mediation the mediator meets with the parties and
works with them to reach an arrangement that all parties can live with. In
the course of the mediation, the mediator will usually have some joint
sessions when the parties will meet face to face. There will be other
sessions when the mediator will meet with just one party. These are known as
“caucus” sessions and give an opportunity to each party to speak with the
mediator in confidence. In the course of the day, the mediator will learn
more about the dispute and will work with the parties to narrow the areas of
disagreement.
The mediator may challenge one or other party on the
position that is being adopted and will focus on the interests of the parties
in the dispute. The mediator will go on to explore different ways of
resolving the case with the parties. Mediation is by no means a soft option
but usually enables a settlement to be reached. If mediation does not obtain
a settlement the parties are free to continue with the formal route.
Lawyers’ Meeting: This is a more
traditional method and is an approach the Team has adopted regularly as it
has, in our experience, proved very successful and is often more cost
effective than mediation. Quite simply the parties, with their legal
representatives (often a solicitor and barrister) meet face to face and try
to discuss the case in an open manner and to try to narrow down issues. This
is a good time to explore offers and counter offers. Once again if this does
not result in a settlement the litigation continues.
What If I Do Not Want Compensation?
Very often compensation is not the primary reason that
people contact lawyers following a medical accident or injury through
healthcare. Instead the patient just wants an explanation of what has gone
wrong and why. Invariably the patient wants the particular healthcare
provider to learn from any errors that occurred so that the same thing does
not happen to someone else. None of this can be guaranteed in a medical
negligence claim, although sometimes indirectly a claim can lead to this.
If your treatment was provided by the NHS (and this includes GPs) there is
an NHS Complaints System available. For many years in England & Wales
Community Health Councils ("CHCs") represented the interests of the public to
their local Health Authority and provided information about NHS services. In
particular, CHCs, in many areas, also gave advice and support to people
making a complaint.
On 1 December 2003 CHCs were abolished. On the same day, following a
number of pilot schemes, a network of bodies known as Independent Complaints
Advocacy Services ("ICAS") was set up with different organisations tendering
in different geographical areas to manage and run these organisations. The
Citizens Advice Bureau organisation has for instance in some areas
successfully tendered to provide this service in some parts of England &
Wales. The ICAS service is intended to provide NHS patients with a statutory
right to independent advice if they have a problem with NHS care or
treatment. It is intended that the new ICAS offices will provide advice,
information and assistance with complaints against hospitals. In addition,
and separately from this, organisations known as Patient Advisory Liaison
Services ("PALS") have been set up by individual Trusts to help resolve
problems on the spot in hospitals and provide information to patients. PALS
however are not independent from the hospital, whereas it is intended that
the ICAS service will be independent.
M&G’s Medical Accidents Team have built up relationships with the ICAS and
PALS services so that when we receive enquiries about medical injuries, we
can continue to provide information about where to obtain help with
complaints when this is appropriate and make sure that patients retain their
right to consider litigation, whether or not they decide to go through a
complaints procedure first. By developing links with these services, we hope
to continue to provide seamless service for people injured as a result of
hospital accidents.
Sometimes mediation can also result in an apology and
explanation being given by the healthcare provider.
|
accident
claims
Enquiry Form