Medical Negligence
Making a claim for Medical Negligence
Each year an increasing number of people are the victims of Medical Accidents. Of those no more than a small percentage take any action or claim compensation for their injury or lost earnings. The vast majority assume that accidents will happen, shrug philosophically and get on with their lives.
Many accidents can be avoided, however, and increasingly risk management and clinical governance monitoring techniques designed to improve the quality of medical care are enabling NHS Trusts and others to practise preventative medicine. The setting up of NICE - The National Institute for Clinical Excellence - is further evidence of an approach that aims to identify, reduce and manage the risks of medical treatment. Increasingly guidelines for good practice are being produced which provide a yardstick against which the performance of doctors and other medical staff can be measured.
At Fisher Jones Greenwood we aim to provide an early assessment of your case, its prospects of success and the likely cost to you of pursuing a claim. Many people are frightened to approach a solicitor for fear of incurring large legal bills. Our aim is to provide you with a modern, friendly service at a realistic cost.
Medical negligence is not easy to prove and most cases are strongly defended as a result of which the cost of finding medical support for your claim can be prohibitive in itself. Our links to organisations, experts and barristers willing to help in such cases enable us to provide an all round service that is second to none.
The first interview is FREE and the options available to you will be carefully explained to enable you to make an informed choice that is right for you and your pocket. Contact Chris Yemm for further information or advice at cyemm@fjg.co.uk
What is it?
Now known as "Clinical" negligence, medical negligence cases are those relating to accidents or omissions in which the standard of care applied in a patient's care has fallen below the standard of the reasonably competent practitioner.
It is an objective test in that a doctor, dentist or surgeon's care is measured against that of his or her peers. If a significant body of fellow practitioners would have acted in the same way confronted with the same circumstances a practitioner will not be found to be negligent. This rule is embodied in the decision of Bolam v Friern Hospital Management Committee(1957).
A recent House of Lords decision has refined this test by deciding that an opinion held by a significant number of practitioners still has to have a logical foundation. Bolitho v City and Hackney Health Authority(1997).
Do I have a claim?
The fact that a practitioner's standard of care has fallen below the accepted standard will not automatically result in an award of compensation. The act or omission still has to have caused the injury complained of. This is known as causation and is the most difficult part of any case to prove. It can lead to complicated arguments as to what the real or principal cause of an injury may be. The skill of the experienced lawyer is to identify these "core" issues upon which the case will turn and prepare a watertight case with the assistance of independent expert medical advice. Contact Chris Yemm on 01206 835250 or email him at cyemm@fjg.co.uk for further information.
How much does it cost?
The fact that something like £2.8 billion was estimated to be required to meet outstanding negligence claims against the NHS Trusts in 1999 has focused government attention on the ways in which that money could be better spent. This has prompted the Government to look at the legal costs spent in recovering compensation and has recently resulted in a tightening up of the success criteria which must be met before Government support - Legal Aid -is forthcoming. These criteria are quite restrictive, require better than average prospects of success and a significant cost to compensation ratio before the case can proceed.
As a result an increasing number of firms, of which Fisher Jones Greenwood is one, have begun taking on Medical Negligence claims on a "no win-no fee" basis. This means that, although you may have to pay Court and Expert fees as the case proceeds, you only pay us if your claim is successful.
If you are out of work or on a low income you may be eligible for Legal Aid to help you to pursue a claim. To see whether you qualify use the Legal Aid Calculator.
If you think that you are eligible contact the Law Society who maintain a list of those solicitors in your area who undertake Legal aid work.
If you think that you are ineligible for Legal Aid contact Chris Yemm on
01206 835250 to discuss the merits of your claim or email him at cyemm@fjg.co.uk for further information.
How do I prove my claim?
It is only comparatively recently that medical practitioners in this country have been prepared to criticise their fellows but the increased emphasis on Risk Management in the NHS and the general raising of standards in medical care has created a burgeoning market for those willing to pass on the benefit of their experience in this way. Much of the credit for this must be accorded to organisations such as AVMA who have done a great deal to level the playing field between doctor and patient.
In order to prove your case you need to obtain an opinion from an acknowledged expert in that particular field which is critical of the treatment you received and which identifies and deals with the essential questions of:-
" The risks to the client were....
" The precautions which could have been taken were....
" The failure to take those precautions resulted in....
The ideal expert is not a "hired gun" who only ever appears for one side - Claimant or Defendant - but an experienced practitioner, respected by his or her peers who is still actively engaged in honing and developing existing skills in the surgery or operating theatre. Various registers of experts exist such as the UK Directory of Expert Witnesses but it is better to rely on an expert known to your solicitor who has a proven track record of providing reports and giving evidence in Court to back them up.
What is my claim worth?
People are often surprised at the small amounts of compensation paid out in cases of Medical Negligence. Apart from catastrophic, wholly disabling injuries in which lifetime care costs form the bulk of the award, the UK courts have lagged far behind the compensation awards of the United States for pain and suffering.
It is still the case that the death of a child results in an award of only £10,000 and in the case of the death of a husband the bulk of the claim will relate to the lost financial dependency that it is possible to prove. The death of an unemployed or retired man is therefore worth far less in cash terms than a young man starting out on his career.
The Courts have adopted this approach of nominal awards for pain and suffering because it is just not possible to put a monetary value on life or health. Valuing the actual financial loss or future cost of care is a practical and emotionless exercise which accepts as read the irreplaceability of what has been lost and seeks to focus on its financial consequences.
The principal source of information for calculating your likely compensation is from past awards in similar cases details of which are widely reported and provide a useful precedent or guide to what should happen in a particular case. No two cases are exactly the same however and this is why a "bracket" is often adopted and why cases are often settled before an actual Court hearing in order to allow for the idiosyncracies of a particular judge or the way in which the evidence may come out at the trial. Although guidelines are issued to Judges by the Judicial Studies Board to try and ensure consistency in awards of damages, the facts of Medical Negligence claims are so diverse as to make this a far from straightforward task in many cases.
At Fisher Jones Greenwood we have access to a number of different sources of legal precedent - both in our library, on CD and through subscription sites on the Internet. As a result, immediately after the first consultation, we will be able to give you a rough idea of what your claim might be worth. This is very important in helping you to decide how much money to spend on Expert reports and Court fees and indeed whether to pursue a claim at all.
Is there an alternative to Litigation?
Yes. On 1st April 1996 the Government introduced the new NHS Complaints system.
The purpose of this new system was to try and divert cases from the Courts by providing satisfaction and redress for complainants, fairness and a general improvement in the quality of medical care.
The first report into this new system was published by the Government in January 1998 and revealed a smaller than expected number of cases being resolved within the target period of 4 weeks at local level.
Despite its good intentions it seems that it has not yet lived up to expectations and patients remain sceptical of its effectiveness. There are however circumstances, for example where an apology or explanation is all that is required, where the Complaints system can provide you with an acceptable solution. We will help you to decide which approach is right for you. For further information contact cyemm@fjg.co.uk