THE MARSHALL & GALPIN GUIDE TO MEDICAL ACCIDENTS

General: People go to doctors (or other medical practitioners such as nurses, physiotherapists, osteopaths, etc) because they have a problem or condition, which needs treatment.

If your health has suffered because of that treatment, or because of a failure to treat the problem or condition, then you may have a legal claim.

In order to succeed in a claim for clinical negligence you have to prove two things:


1. Breach of Duty

In other words, did the clinician (doctor, nurse, physiotherapist etc);

o Fail to do something he/she should have done or,

o Do something he/she should not have done.

The legal test for this is what another reasonable practitioner, with the required expertise, would have done in the circumstances.


2. Causation

Even if we are able to show that there was a breach of duty and the clinician fell below the standard of care to be expected, we then have to be able to prove, on a balance of probabilities, that the clinician’s act or omission has caused your problems/injury.


Negligence:  In summary therefore, 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. An experienced Solicitor can tell if there is no case after reading the records. Otherwise an independent medical expert is instructed to consider the facts, look at the records and prepare a report advising on the standard of care, whether alternative treatment should have been given and whether your problems /injury is related to this. The expert will also give his/her view on your present condition, what can be done to help and/or what the future outlook will be.

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.


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.

As clinical negligence cases can be expensive to investigate and pursue, the likely amount of damages must be enough to justify the cost of investigating and pursuing a claim. As a guideline, a case probably has to be worth more than £5,000 to justify these costs.  There are some exceptions.


Costs:  Often we cannot advise whether someone has a case or not until we have an opinion from an independent medical expert. The cost of a report varies depending upon the medical problem, and the treatment. Sometimes the issues are clear, sometimes very complicated.

An independent expert report can cost anything from £300 to more than £1,000 although many experts are now prepared to give an initial view for a limited fee. We always get an estimate of fees first and let you know the cost no matter how your case is being funded.

We will need medical records from the GP, and any hospital where treatment took place. You have a right to copies of your records under the Data Protection Act 1998. There is a maximum charge of £50 for each place providing copies. Some Trusts make no charge if the request for records comes from the patient themselves.

As well as the cost of reports and records, there are our costs of investigating a claim. These generally range from £1,200 - £2,000, depending on how complex the case is.

Therefore the total costs of exploring a claim are likely to be from £1,750 - £3,000, including the experts’ reports and medical records.

If there is a claim to pursue, further costs can be high. We always discuss funding carefully with you. You should find out if you have legal expenses insurance attached to any insurance policy you have (eg. household/buildings, motor, credit card or other policies). We will check if you are eligible for legal aid.

If you have neither legal expenses insurance nor are eligible for legal aid we are able to offer, in appropriate cases, a conditional fee agreement (CFA). This is a “no win, no fee, no costs” method of funding where we will not charge you for our services or for any of the expenses such as expert reports should your case be lost. If you win your case then the Defendant will be ordered to pay the vast majority of our costs and the expenses, which mean, in effect, you will not have to pay anything, win or lose.

If we feel that your potential claim is not strong enough to offer a CFA then any claim would have to be paid for privately.


Other remedies:  It is important to remember that you can make a complaint about the treatment you have received. In some cases this may be more suitable than bringing a claim. A complaint can be a valuable way of finding out what the doctor or hospital is likely to say about the treatment. This can help when considering a legal claim. However a complaint will be put on “hold” if it becomes known you are taking legal advice. We can advise you about this.

All NHS Trusts have complaints procedures, and each hospital has a complaints officer. A complaint - preferably in writing - should be made within 6 months either of treatment causing problems or the date when the patient first became aware that the treatment received was responsible for problems that he or she has developed. Acute hospitals now have a Patient Advice and Liaison Service person who can also help with any concerns you may have about care and treatment whether ongoing or after you have left hospital. When raising a complaint with an NHS Trust you should be aware that the complaints procedure will be stopped if you advise the Trust you are seeking compensation. There is no provision for the compensation under the present NHS complaints system.

If you have a serious complaint, which you need help to take up, then you should contact ICAS, (the Independent Complaints Advocacy Service for NHS complaints). In the Oxfordshire area the contact telephone number is 01869 325535.

All GP practices have a formal complaints procedure. Complaints about GP treatments should first be made to the GP Practice within six months. However the local health authority (responsible for GP matters) has a Patients Services Officer who will also help with complaints.

There are more proposals in the pipeline for changing the way complaints and the NHS deals with claims. We shall provide information about how these changes may affect you, and your potential claim, when changes are due to come in effect.


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 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.

We also need to request copies of your medical records. Once we have your records we will instruct a medical expert to prepare a report. This whole process can take weeks if not months. It is only following our receipt of those reports that we can give confidant guidance as to the likelihood of success of your claim.
 

                 
We hope this information sheet is helpful.

For further information please contact:

Tracy Norris-Evans  (Oxford) 01865 268632  email - mailto:tracy.norrisevans@marshallgalpin.com

Richard Coleman  (Oxford) 01865 268631 email - mailto:richard.coleman@marshallgalpin.com

Judith Leach  (Oxford) 01865 268609 email - mailto:judith.leach@marshallgalpin.com

www.marshallgalpin.com

 [please click on the cross (x) to close this window]