Medical Negligence Claims Guide

8/9/2019 Medical Negligence Claims Guide

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Medical Claims OnlineSpecialists in medical negligence

Medical Negligence

Claims Guide



We are a network o specialist Medical Negligence Lawyers. All our membersare considered experts in their feld. We only advise in relation to MedicalNegligence claims. For that reason, all our members have extensive MedicalNegligence Litigation experience. In act, many o our Lawyers havereputations second to none. Their extensive knowledge coupled with theirsympathetic manner make them the perect Medical Negligence Lawyersor you. Because we only deal with Medical Negligence Claims you can restassured that your Medical Negligence Claim is in the best possible hands.Medical Negligence claims can be extremely complex and can take many

years to reach a conclusion. You will thereore need a Medical NegligenceLawyer that you can rely on.

There are three ‘hurdles’, so to speak, which must be overcome beore aMedical Negligence Claim is successul.

The frst ‘hurdle’ is known as ‘Duty o Care’. The question to be asked is: Didthe alleged negligent party owe you a duty to take reasonable care to avoidany harm to you? I that question can be answered in the afrmative, the frsthurdle is overcome. Fortunately, in Medical Negligence Claims, this questionis almost redundant; it is well known that all medical proessionals owe a dutyo care to their patients. Thereore, the issue o duty o care does not usuallyneed to be addressed.

The second question to be asked when considering the liability o a medicalproessional is: did he/she breach their duty o care to you. That is, did thestandard ocare provided to you all below a standard to be expected o a reasonably competent medical proessional in the same situation.It is adeence to any Medical Negligence Claim that the medical proessionalacted in a way that would be considered reasonable by a responsible body o

medical opinion.

About Us

The Law : The Three Hurdles

1 : Duty of Care

2 : Breach of Duty

Medical Negligence Claims Guide




This issue is probably the most complex in a Medical Negligence Claim. Itis also very oten the area that a person fnds difcult to understand. I it isshown that the medical proessional has breached his/her duty o care, thatbreach must have caused some injury. This injury can either be deteriorationin their condition, an adverse outcome, or treatment that they would not haveundergone had there been no negligence.

So, you have to prove that but or the medical negligence you would havebeen in a better position. What is oten difcult to understand is the act that,

whilst there may have been a breach o duty, it does not necessarily ollowthat that has caused any harm; i.e. the patient would have been in the sameposition even i the medical proessional had not breached their duty o care.The aim o compensation or Medical Negligence Claims is to put the victimback into the position they would have been ‘but or’ the medical negligence.Clearly the victim o a medical accident cannot turn back the clock eitherphysically or psychologically; any compensation awarded in a MedicalNegligence Claim is intended to cover the fnancial losses incurred both inthe past and also those that will arise in the uture.

I your Medical Negligence Claim is successul, you will also be awarded asum to compensate you or the injury itsel.

You must bring a claim within 3 years o the date o the alleged negligence.Alternatively, you may bring a claim 3 years rom the date that you knewor ought to have known that you had a potential claim. This can becomecomplicated and your legal advisor will discuss this urther. I the claim is on

the behal o a child, legal proceedings should be brought 3 years ater their18th birthday, i.e. beore their 21st birthday.

3 : Causation

Time Limits





There are various ways to und a Medical Negligence claim. Your legal advisorwill discuss the various options with.

Our Panel Members are able to oer any o the ollowing unding options:

Nowadays it is difcult to obtain Public Funding or a Medical Negligenceclaim. Your legal advisor will assess your eligibility. You must be fnanciallyeligible beore you can obtain Public Funding. In addition, usually your claimmust also be worth in excess o £10,000.00.

Once your fnancial eligibility has been assessed your claim must also meeta costs beneft test. I.e. the costs o bringing a claim must not substantiallyoutweigh the beneft o bringing the claim.

A No Win No Fee Agreement (CFA) may be the best method o unding yourclaim i you are not eligible or Public Funding. You may be asked by yourlegal advisor to pay the costs o any disbursements (medical records ees andExperts’ ees). You will not have to pay your legal advisor’s ees unless you actunreasonably. You should discuss with your legal advisors the circumstancesin which you may be asked to pay.

No Win No Fee agreements only cover your legal advisor’s costs and notthose o the Deendant. Your legal advisor will advise you as to whether aninsurance policy (known as ATE insurance) should be taken out to cover theDeendant’s costs should you lose your case.

This is the traditional method o unding a legal claim. Given the extremelyhigh costs o Medical Negligence claims it may not be appropriate. However,your legal advisor may ask you to pay on a private basis in the frst instance

until the prospects o success are clear.

Funding

Public Funding (Formerly Legal Aid)

Conditional Fee Agreements (“No Win No Fee”)

Private Funding





Who the Deendant is in your claim will depend on who has been negligent.

Where a GP has been negligent, the claim will be directed at the individualGP concerned. The GP will thereore be named as a Deendant and his/herMedical Deence Union will deal with the claim.

Where negligent treatment has been provided by a person employed byan NHS Hospital, the Deendant will be the Trust that is responsible or thatHospital. The claim will be dealt with by the NHS Litigation Authority.

Where a Private Consultant is negligent the claim will be directed at theindividual Consultant involved. However, i you receive treatment at a privateHospital and it is alleged that the nurses were negligent, the claim will bedirected at the Hospital itsel. Private Hospitals have insurance againstMedical Negligence claims.

The amount, and type, o compensation will vary rom claim to claim.However, Medical Negligence Claims will usually consist o the ollowing:

Special damages are awarded or any fnancial losses that have arisen as aresult o the negligence. Special damages are split into past and uture losses.

Defendants

General Practitioners

NHS Hospital Treatment

Private Hospital Treatment

Compensation

Special Damages

Next Page...





Past losses will relate to any out o pocket expenses that have already arisen suchas:

The initial stage o any Medical Negligence claim is the investigative stage.During this stage your Legal Advisor will gather the necessary documents andevidence required.

The investigation stage will usually ollow a set process:

Future losses will cover losses that will reasonably be incurred in the uture. Futurelosses will normally be calculated based on expert evidence. The evidence willassess the required equipment, prescriptions, treatment (amongst other things)that are likely to be required in the uture and will also calculate their cost.

Depending on the size o the claim, uture losses may be paid as either a lumpsum or as periodical payments. Your Legal Advisor will discuss this in more detail.

Special Damages Continued...

The Investigation Stage


• Travel

• Loss Of Earnings

• Prescription Charges

1. Obtain medical records – usually all records that relate to you (e.g. GP, Hospital and

Physiotherapy records)

2. Review medical records – this task will usually be undertaken by a Nurse Paralegal.However, some Lawyers prefer to do this process themselves

3. Witness Statement – You may be asked to give a statement setting out the events

leading up to your injuries and what you believe to have been negligent

4. Report on breach of duty – this will be prepared by an independent medical expert

5. Report on Causation – again, this will be prepared by an independent medical expert

6. Pre Action Protocol Letter of Claim – see below

7. Pre Action Protocol Letter of Response – see below




The Pre Action Protocol or Medical Negligence Claims was developed to reducethe number o claims that reach the Courts and to encourage early settlement.Beore issuing our claim at Court, your Legal Advisor must approach theDeendants and provide them with detailed inormation in relation to:

The letter is known as a Pre Action Protocol Letter o Claim.The Deendants mustthen acknowledge this letter within 14 days. The will then have a period o threemonths in which to provide their Letter o Response. This letter must either:

Many claims will settle at this stage avoiding the need or Litigation. Shouldthe Deendant reject your claim your Legal Advisor will discuss with you theprocedure or Issuing Proceedings at Court.

This guide is or inormation purposes only. I you eel that you have been thevictim o Medical Negligence then please dont hesitate to get in touch.

Pre Action Protocol for Clinical Disputes


• The background to your claim

• The allegations that you are making (based on the evidence

obtained)

• The injuries that you have suffered• The likely value of your claim – or the losses that you will be claiming

• 1. admit your claim and therefore offer to pay compensation; or

• 2. reject your claim and explain their reasons why.

For a helping hand when you need itmost. Visit us online

www.medicalclaimsonline.co.uk


Documents

Medical Negligence Claims Guide