Clinical Negligence

• What should I do if I have a complaint about the standard of my care?You do not necessarily have to follow the NHS or private complaint procedure before beginning your own legal case but it may help the litigation process to do so.  Through the NHS or private complaint procedure you can seek an explanation as to what went wrong. You have the right to make a formal complaint about any aspect of NHS/private care, treatment and service. If you choose to do this, you should do so as  soon as possible, but it should not prevent you from contacting us. Following a formal complaint, the treatment provider will undertake an internal investigation. The  treatment provider is also under an obligation to undertake an internal investigation if a “never event” incident has occurred, to highlight failings and to recommend change, where appropriate. “Never events” are defined as serious incidents that are wholly preventable and should not occur.  Whilst Defendants are working towards a more transparent culture, there is still much room for improvement. An early apology and acceptance of mistakes can provide some reassurance and closure to victims of medical negligence. For more information see here.

Any injuries arising out of medical negligence can have a devastating effect, not just on the patient but the whole family. There will undoubtedly be financial losses in the form of lost income, the cost of aids, adaptations and equipment, the need to pay for care, or reliance upon family and friends to provide care and support, to name a few. It is therefore perfectly reasonable to seek financial compensation for an injury suffered because of the negligent actions of medical professionals.

Litigation costs and human costs are avoided if the negligent treatment is avoided in the first place. When avoidable harm does occur, any potential legal costs could be significantly reduced if incidents are investigated properly, failings identified, and resolution of the case sought without the need for litigation.

The only way to get full compensation for medical negligence is by taking legal action. Legal action cannot put things right but it can help you to cope with the consequences of the negligent actions.

The objective of the compensation is to put the Claimant in the position they would have been in if they had not sustained injury.   In a claim for compensation, your legal team will advise you on heads of losses that can be advanced on your behalf. The following is not intended to be an exhaustive list, but examples of some items that can be claimed as part of your injury claim:

1. General damages for pain suffering and loss of amenity (“PSLA”)
2. Care
3. Loss of earnings
4. Travel/transport
5. Aids and equipment
6. Treatment/therapy/consultations/surgery
7. Assistance with gardening/DIY
8. Accommodation and/or adaptations

Damages are awarded for pain which the Claimant feels consequent to an injury both in the past and into the future.  The level of damages will depend upon the duration and intensity of the pain and suffering. The assessment is subjective and the Claimant must show the effects of the injuries.  The Expert medical evidence obtained during the course of a claim will also assist with this.

Medical negligence claims do have a positive impact on the NHS and its standards, but only because they raise the profile of areas of concern within individual NHS Trusts. This then results in the Trusts instigating internal investigations into their own failings. These investigations very often result in “lessons learned”. Members of staff undergo retraining and management teams think about different approaches to problems, Protocols are often re-writtten and tighter systems put in place. Whilst this all helps to raise the standard of care in the NHS it does not alter the fact that standards should be high in the first place and it should not take a medical accident to happen for a Trust to become aware that they have a problem.

Unfortunately medical accidents are far too common an occurrence. At TSP our focus is always on improving the life of our client rather than improving the NHS, although this is hopefully a side-benefit to the claims that we pursue on our clients’ behalf.

Usually, once a claim has been settled and we have signposted you to any external support networks that may help you, this is the end of our involvement. However, there are certain cases that require our further input and expertise after settlement has been reached.

In cases where the settlement monies are for a minor (anyone under the age of 18) or for someone without capacity (unable to look after their own affairs) the money will need to be looked after. This is done by setting up a Trust or working with the Court, who holds the money until it needs to be released.

The TSP Clinical Negligence team has a strong track record of achieving multi- million pound settlements and  a number of these settlements have been awarded to children. Once a claim is settled therefore there is still work to be done, but the work changes from litigation to long-term planning.

TSP has the benefit of a broad spectrum of expertise across many of areas of the Law. This allows us to offer continuity of client care and legal advice in a number of areas such as:

• Setting up a trust for a child
• Court of Protection advice
• Property Advice
• Deputyships
• Making a new Will or updating an old one to reflect your change in circumstances

Every client’s situation is different  and will therefore have different needs. Our specialist team will help you to identify the steps you need to take, to take care of your and your family’s future.

No, we’re afraid that they don’t. As we explained in our “Do I Have a Claim” section there are a number of tests that must be satisfied in order to be able to proceed with a claim. However, even where we do not advise making a claim we do our best to explain why this is the case and help you to get some form of closure, if possible.

For example, a potential client approached us because he was concerned that he had lost the sight in one eye as a result of poor care. We sought an expert opinion on this and contrary to what the client expected, the expert advised that with this particular eye condition he would have lost the sight in that eye anyway, irrespective of what care he had been given; therefore he did not have a claim.

The potential client was relieved to find out that his situation hadn’t arisen because of poor or negligent care and that he didn’t have to go through his life knowing things could have been different with better care. He said he felt very pleased to know that it wasn’t somebody’s fault that he was in this position and he was grateful to us for exploring the matter and helping provide much needed answers.

The amount of compensation that can be claimed in a clinical negligence case is based on the level and extent of the pain, suffering and loss sustained, in addition to the associated losses from not being able to work or care for yourself. The amount of damages that can be awarded will therefore vary hugely from case to case.

For example; compensation for the preventable death of a high-earner with dependants i.e. a spouse or young children, can be very substantial, whereas,  there are cases where the injury has been short lived with no long term consequence, which will result in little or no value.  TSP’s legal team have represented Claimants to secure substantial compensation in all aspects of clinical negligence. Visit our case studies page (hyperlink to the case studies) for more information and examples.

Ultimately, when you proceed with a claim for clinical negligence the only thing you can be sure of achieving, if your claim is successful, is an award of compensation. Very often, the claim process can provide answers and a greater understanding of what happened but this is not guaranteed.

You need to be prepared to go to Court but it is unlikely that you will ever have to. Only a very few cases go unresolved all the way to a trial.

Usually, a claim has to be lodged at Court within three years of the date of the negligence or the claimant becoming aware of the problem (date of knowledge)— this is often when the negligence occurred.

There are certain times when different timescales apply for bringing a claim, including if the patient is under the age of eighteen, or lacks mental capacity. For more information on Court process and Time Limits see here.

Yes. We have a highly skilled specialist, team who ensure training is up to date at all times. The team is APIL, AvMA and SCIL accredited, to ensure that that the advice and service you receive is of the highest quality.

The Clinical Negligence team is also recognised in the Legal 500 as one of the leading firms in Essex.