- Quality
- Step 1: Complain
- Step 2: Establish the facts
- Step 3: Breach of duty
- Step 4: Causation
- Step 5: Value
- Time Limits
- Funding
- Examples
- Panel solicitors
- Complaint example
Medical Accident or, as it is sometimes known, Clinical Negligence as an area of law relates to any harm caused by the act or failure to act of a health professional.
It is a highly specialised area of law and requires careful consideration of all the facts in order to achieve success. It should be stressed that the majority of cases are not successful. Some solicitors say they have really high success rates, but the difficulty here is what is being measured. If they are realistic and include every enquiry, rather than just the cases they take on, they would have to concede that success rates are relatively low. The reasons for this are found below in the sections entitled breach of duty and causation.
Please note that the medical accident team does not undertake work relating to psychiatric negligence where the only injury is psychiatric.
In our view quality is not measured by winning awards. Awards within the industry are on the basis of self-promotion so that the best spin an award winner can put forward is that of all the nominees who put themselves forward, an independent panel felt they were the best.
There are 3 independent bodies that assess quality within the personal injury and clinical negligence legal field.
The Law Society runs a Personal Injury Panel and a Clinical Negligence Panel. Membership details can be checked on the Law Society website which is a little confusing, but if you look at each solicitor there is a heading “areas of law”, which is what the solicitor says they specialise in, and then there is a heading “accreditation schemes”, which are the Panel memberships accredited by the Law Society.
Park Woodfine Heald Mellows are members of the Personal Injury and Clinical Negligence panels.
The Association of Personal Injury Lawyers (APIL) runs a series of schemes. Please note that it is also possible to simply be a member of APIL, which is not the same as accreditation.
APIL have a scheme whereby personal injury lawyers can be accredited as Senior Litigators, Fellows or Senior Fellows, depending on the amount of experience they have. APIL also run an accredited office scheme. APIL accreditation details can be found here. Park Woodfine Heald Mellows are members of both schemes.
Finally, Action Against Medical Accidents (AvMA) run a scheme of accrediting clinical negligence lawyers. For more information click here. Park Woodfine Heald Mellows are accredited.
Park Woodfine Heald Mellows are therefore members of all 5 schemes.
What should I do if I have suffered clinical negligence?
NHS Treatment
Before you contact a solicitor you should make a complaint. This is a requirement if you want legal aid,
but even if you do not qualify for legal aid, it is helpful if you make a complaint.
Click here for an
example of a complaint
Please remember that there is only one thing that stops the complaints process and that is if you indicate that you intend to bring legal proceedings. Therefore do not at any time during the complaints process suggest that you are intending to sue.
There are organisations who will help patients make a complaint (click here for addresses) Those listed on our website all come under the umbrella identity of Independent Complaints Advocacy Service (ICAS).
When you have complained, we will require a copy of the complaint and the response. If you have a meeting with the NHS, we will require the minutes of that meeting. Even if ICAS recommend that you take your complaint to the next level, you should contact us as soon as the response is to hand to allow us time to get funding in place and to investigate your complaint.
Private Treatment
Some Health Insurers operate their own schemes. In addition it might be possible to complain to the
regulatory authority concerned, usually the
General Medical Council (GMC) or the
General Dental Council (GDC).
Contact us as soon as the response is to hand to allow us time to get funding in place and to investigate your complaint
The strongest evidence in the case will inevitably be the medical notes. Medical notes are like the policeman’s notebook in that they are a contemporary record made by someone in authority and therefore the Court tends to rely upon them heavily.
If the patient or their family keep a diary (or have illicitly recorded the appointment) then that would be regarded as strong evidence also.
Most people do not keep a diary, and so most of the factual evidence relied upon will be the medical notes. Park Woodfine Heald Mellows will try to get the health professional’s notes, as well as all related treatment notes, including the GP notes.
We then prepare a chronology, i.e. a timetable of what happened and when, which we will ask you to check.
Once we are all happy with the facts, we then need to prove breach of duty
Every health professional owes their patient a duty of care.
The difficult bit is proving the breach! The test is very simple:
“Was the treatment/advice given by the clinician below the standard required of a responsible body of clinicians of the same specialism”?
It will be appreciated that patients are all very different and generally there are a number of ways of treating patients with the same illness or injury. It does not necessarily follow that where two patients with the same problem in two separate hospitals are treated differently and one operation goes wrong, that there has been a breach of duty.
The breach is not measured by the result, but whether any responsible surgeon of the same specialism would have carried out the operation that way.
We instruct an expert of the same specialism as the clinician against whom you wish to pursue a claim. If the report is satisfactory, we then need to prove causation.
Causation is a difficult concept to understand. Basically it is the connection between the breach of duty and the damage. If you can’t establish causation, you lose, even if you can prove breach of duty. We call it the “so what?” defence, i.e., “yes we have breached our duty to you, but it hasn’t made any difference to you”.
To understand this better, click here to look at some causation diagrams.
Compensation is based on pain and suffering and out of pocket expenses (past and future).
The pain and suffering value is dealt with by an appropriate expert who will examine you and prepare a report.
The out of pocket expenses that can be claimed are any cost or loss incurred as a direct result of the breach of duty. It usually involves loss of earnings, care, medical expenses, extra travel, etc. If the injuries are more severe then it might include adaptations to your accommodation, nursing care or occupational therapy. In severe cases we will instruct an appropriate expert to report on what is required. It is a good idea to keep a list of your losses and retain any supporting papers (receipts, wage slips, etc).
In a fatal case the compensation is worked out slightly differently. Also, if the breach of duty involves an unwanted birth, the compensation is worked out differently. We will advise you how compensation is calculated in such cases.
The time limits for bringing a claim mentioned here only relate to clinical negligence.
The basic rule is that Court proceedings must be commenced before the 3rd anniversary of the breach of duty.
If the breach of duty is not known of at the time, then the time limit is 3 years from the date of knowledge.
For children proceedings must be commenced before their 21st birthday.
For the mentally disabled there is no time limit, unless the patient has periods when they are not mentally disabled, in which case proceedings must be commenced before those periods total more than 3 years.
In a fatal case proceedings must be commenced before the 3rd anniversary of the death as long as the death occurred within 3 years of the breach of duty (or knowledge of the breach).
It is possible in certain circumstances to have the time limits extended, but no result is guaranteed, and so it is always best to seek legal advice immediately (and more importantly to act upon that advice), because the late litigant has their conduct analysed by the Court when it decides how to exercise its discretion.
Legal aid
Park Woodfine Heald Mellows are franchised by the Legal Services Commission to act in cases funded by
legal aid. If you have a very low income or are on benefits then you should qualify for legal aid.
If you have the patience of a saint it is possible to check your eligibility online.
Legal expenses insurance
We also act for clients who have the benefit of legal expenses insurance. It is always worth checking your household insurance as quite often clients find they have purchased this without realising it.
There are a number of things you need to consider. Firstly, there is often a draconian time limit (6 months is quite common) for making a claim. So request a claim form immediately if you do have legal expenses cover.
Second, the insurer will inevitably point you towards their panel solicitor unless you make a specific request about the solicitor you wish to choose. The panel solicitor will inevitably be many miles away and although on an insurer panel may not actually be accredited, principally as the insurer tends to have driven a hard bargain in relation to fees as a pre-requisite to joining the panel. If clients prefer our local connection and the fact that we are accredited, we prefer to complete the claims section of the claim form after the client has completed their personal details and signed it. That allows us to put a stronger case for the client.
For information about panel solicitors click here.
Private paying
We will act on a private fee paying basis. We charge for out of pocket expenses (medical release fees, experts’ fees, etc) up front. Our own charges are billed quarterly.
“No Win, No Fee”
We generally do not act for clients from the outset of their case on a “no win, no fee” basis.
All investigation work (i.e. establishing the facts,
breach of duty, and causation) will be carried out on a
private fee paying basis. If the investigation is positive we will then sign you up to a “no win, no fee”
agreement.
We will also consider transferring to a “no win, no fee” agreement if legal aid or legal expenses end for some reason.
“No win, no fee” is known as Conditional Fee Agreements or CFAs by solicitors.
These case examples are not intended to show how successful we are, but intended to give an example of cases that are worth investigating and, more to the point, cases that are not worth investigating.
Example 1
42 year old with long standing problems with her right eye. She is told that this was caused by forceps
at time of birth.
If this is the first time that the client has been told, then the claim would not be time barred and we would support an investigation.
Example 2
Elderly widower calls out GP on a Saturday, feeling generally unwell. GP prescribes painkillers.
Problem persists and GP is called out again on the Monday. The GP advises him to continue with the
painkillers. The condition deteriorates and on Tuesday he is admitted to hospital. On Wednesday he
dies. Pneumococcal meningitis is given as the cause of death.
On the face of it this is a serious case. However, the fact that the victim is an elderly widower means that the case has a low value, and generally the advice would be that the claim is not valuable enough to warrant funding an investigation.
Example 3
Man receives the wrong medication from a chemist. However, he realises the error before taking it.
He feels he should be compensated for what might have happened had he taken it.
Although there is negligence, there is no loss here. There is no basis for compensating people for what might have happened.
Example 4
Patient’s asthma medication was changed by her GP. As a result she was sectioned under the Mental
Health Act.
Park Woodfine Heald Mellows do not undertake psychiatric cases where there is no physical injury.
Example 5
Man has a motor cycle accident and broke his leg just over 3 years ago. It was operated on with metal
plates being put in. The metal plate broke, which resulted in the plate being removed. 4 months later a
bone graft took place and about a year later his fibula broke due to the pressure it was under.
The first thing to look at here is whether the motor cycle accident was caused by someone else. If it is all the ongoing problems are compensatable by the other driver (and that is whether or not there is clinical negligence). If the accident was the motor cyclist’s fault then we would recommend investigation. On the face of it there are concerns as to why the plate broke and why the fibula broke. There might be problems ultimately with value.
Example 6
Woman goes into hospital with suspected meningitis. After 3 attempts at lumbar puncture over a 24 hour
period, the previously fit woman is wheelchair bound. The evidence suggests that this is due to the lumbar
puncture attempts rather than the meningitis.
If the evidence is correct, this is a case that is worth investigating.
Example 7
A man has a road traffic accident 34 years ago, breaking his tibia and fibula. Many, many operations
ensue. Some long standing problem is then found.
A case where there have been many operations and investigations is unlikely to have a significant breach of duty that is worth anything of any value. Generally, these cases are not worth investigating.
Example 8
Man is prescribed insulin by a consultant. However, his GP refuses to support the insulin. The man
then has a heart attack, allegedly due to the lack of insulin.
This is a case where there is an obvious breach of duty and potentially valuable outcome. It is therefore worth investigating.
Example 9
A man with a long history of eye complaints that are ignored by his GP goes to an optician, who is concerned and
refers him on to the local ophthalmic department. There a long standing cancer is diagnosed.
This is worth investigating, but the claim may not be worth anything if it is a secondary cancer. Secondary cancer would suggest it is a serious cancer and so it might be difficult to prove that earlier intervention by the GP would have made a significant difference.
Panel Solicitors – things to check
Park Woodfine Heald Mellows are not members of any clinical negligence legal expenses insurance panels. You may feel therefore that our views are given with a degree of bias. Our aim, however, is just to point out the issues and our experience.
Things you need to check:
- Are they local? If they are not, are you happy dealing with the case over the telephone?
- Is one case worker assigned? If not, you can find your case being dealt with in a call centre type environment. Do you want to deal with your case in a series of questionnaires? Are you happy for a succession of different caseworkers to deal with the case?
- Is the case worker accredited?
In April 2009 Park Woodfine Heald Mellows successfully took a case rejected by a panel firm to Court. This case highlights the deficiency of the panel solicitor approach to problems.
We have included a sample complaint with comments. Click here to view it.
Bedford 01234 400000 ~ Northampton 01604 233200 ~ Rushden 01933 397000
Print
