Medical Negligence Guide

Transcription

1 CLINICAL FAMILY NEGLIGENCE MEDICAL NEGLIGENCE DIVORCE CLAIMS Medical Negligence Guide

2 2 We understand that complaining about medical treatment can be overwhelming, distressing and upsetting. You should not feel guilty for doing so. Index MEDICAL NEGLIGENCE PRACTICAL GUIDES FROM TEES LAW Step by step Making a complaint 3 Bringing a 3 Funding your 4 Investigating your 4 Commencing court 5 The timetable 5 Trial 6 Interim payment 6 Settling your s 6 Valuing your 6 Provisional damages 9 State benefits 9 Court of protection 9 Time limits 10 How can Tees help? 10 Most medical care is safe and effective. However, mistakes and systemic errors will occasionally occur, especially where nurses and doctors are over-stretched. Fortunately, these mistakes and errors rarely cause harm. If something does go wrong, you have been injured, and you need advice you should seek the help of a specialist medical negligence solicitor. We understand that complaining about medical treatment can be overwhelming, distressing and upsetting. You should not feel guilty for doing so. You may be entitled to an apology and, if you have suffered injury and financial loss, it is important that you receive the compensation that you need. Healthcare providers also need to be made aware of what has happened In order to improve patient safety.

3 3 If you have been injured because a doctor or other healthcare professional has not provided the proper standard of care it may be possible to compensation. MEDICAL NEGLIGENCE STEP 1 Making a complaint If you would like a full explanation of what has happened, an apology from the hospital or doctor concerned and assurances that any problems that might affect other patients have been addressed you could consider: complaining to the doctor or hospital involved in your care and asking for an explanation; using the formal NHS Complaints procedure to make a formal complaint; contacting the body responsible for improving and monitoring the quality of care. In England, this is the Healthcare Commission; and/or writing to the relevant professional regulatory organisation if there is a question about an individual doctor or other healthcare professional s fitness to practice. For further information, please see Your Guide to Making a Complaint under the NHS Complaints Procedure. STEP 2 Bringing a If you need compensation, then you should consider bringing a medical negligence. The fact that there may have been an error or a poor outcome does not automatically entitle you to compensation. However, if you have been injured because a doctor or other healthcare professional has not provided the proper standard of care it may be possible to compensation. Compensation will only be paid if you can prove that: 1. The health professional treating you owed you a duty of care; All healthcare professionals have a duty to their patients to take reasonable care when carrying out their professional skills. 2. The health professional was negligent; A healthcare professional must provide an acceptable standard of care which is consistent with a responsible body of medical opinion. A healthcare professional is not negligent if other responsible healthcare professionals would have acted in the same way. 3. And, you suffered harm, as a result of the negligence ( causation ). Examples of medical negligence may include: a failure to diagnose your condition; a delay in diagnosing your condition; making the wrong diagnosis; failing to arrange the investigations or treatment you need; failing to warn about the risks of a particular procedure; surgical error; failing to recognise and act on complications; making a mistake in the prescription, administration and dispensing of drugs. 3. Funding your 8.Interim payment

4 4 We felt Tees were very professional in our case (through a very hard and emotional time!)...thank you for helping us reach our positive outcome Mr C, Cambridge STEP 3 Funding your If your medical negligence solicitor considers it is worth investigating the further, they will advise you on the most suitable method of funding your. You should not worry about costs as there are a number of options which may be available to you, including: legal-expenses insurance trade union funding public funding (formerly called legal aid ) No win, no fee agreements ( Conditional Fee Agreements ) private funding Tees has a Legal Aid Franchise and are able to act for a number of legal expenses insurers. We also offer No win, No fee Agreements, if appropriate, which means there is no financial risk to our clients from the outset. STEP 4 Investigating your It is important to investigate your thoroughly to establish how strong it is. The initial investigations can, therefore, take a number of months. An initial statement based on your recollection of events will need to be prepared.. A copy of all your medical records will need to be obtained, sorted and reviewed. Any case that is brought must be supported by independent expert evidence. Therefore, the next step will be to instruct an independent medical expert to review your records and advise whether or not the care you received fell below an acceptable standard. If your treatment was substandard, a further independent medical expert is instructed to consider whether this caused, materially contributed to or worsened your condition. It is only once this information is available that it is possible to assess whether or not your has reasonable prospects of success. A meeting ( Conference ) with an experienced barrister and the chosen experts may be needed to review the evidence in detail and ensure that your is strong enough to proceed. Once it is established that your is worth pursuing the Defendant must be notified of the in a detailed Letter of Claim. The Defendant has four months to reply with their Letter of Response. This gives them the opportunity to investigate your case. They may deny that they are responsible for your injuries or they may agree that they are liable for some or all of your injuries. They may offer you compensation to settle your at this time. After we have received the Letter of Response we will review your case further and advise you whether to commence formal Court. 3. Funding your 8.Interim payment

5 I would like to give my big thanks and appreciation to you and all your colleagues at Tees for the effort you have put into my. Mrs G, Saffron Walden 5 STEP 5 Commencing court A Claim is commenced ( issued ) by sending a simple formal court document called the Claim Form to the court. This must be served on the Defendant within four months, together with: 1. A statement of your (the Particulars of Claim ), which will set out the allegations of negligence; 2. A Schedule of Damages, which will set out the specific financial losses incurred as a result of the alleged negligence and an estimate of the likely future losses; 3. A medical report on your condition and prognosis. You will need to approve all these documents and sign a Statement of Truth, confirming that the documents are true and accurate, before we send them to the Defendant. STEP 6 The timetable The Defence is technically due 28 days after the Particulars of Claim are served. However, the Defendant usually applies to the Court to extend this time limit and a 1-3 month extension is usually given. After the Defence has been filed, the Court sends out a questionnaire to all parties ( Allocation Questionnaires ) which each party has to complete detailing the evidence they intend to rely upon and the timetable they think appropriate for the case. Thereafter, there will be a Court hearing (a Case Management Conference ), when the Court will set down a timetable of events to progress the case to trial having taken int account the information contained in the Allocation Questionnaires. Generally the court will look to see that the trial is scheduled to take place within months of the Claim form being issued. The timetable generally includes: Production of various documents relating to the case ( disclosure ). Exchange of statements from you and all witnesses, including the health professionals responsible for your care ( exchange of factual witness evidence ). Exchange of expert reports ( mutual exchange of expert evidence ). A meeting between medical experts on both sides to discuss the case and try to narrow the issues prior to trial ( experts meetings ). This meeting usually takes place without the lawyers present. The timetable then allows some time for negotiation between the parties, although this may happen at any point during the. There is usually at least one further Conference with your barrister and experts to review your case in detail and consider the best way to proceed. 3. Funding your 8.Interim payment

6 6 The vast majority of cases are settled without any court hearing, but some cases do proceed to trial and it is always necessary to prepare on the assumption that the case will proceed to trial. STEP 7 Trial The vast majority of cases are settled without any court hearing, but some cases do proceed to trial and it is always necessary to prepare on the assumption that the case will proceed to trial. At a trial, a judge will listen to the evidence, and particularly the evidence of the independent experts, and decide whether or not your succeeds. The length of the trial depends on the complexity of the case. In some cases, the court will deal with just some of the issues in the first instance. For example, the court often decides to have one hearing dealing with liability and, if this succeeds, another to deal with the amount of damages. This approach is known as a split trial. STEP 8 Interim payments It may be possible to obtain an interim payment of compensation from the Defendant to help you purchase specific items such as a wheelchair, a car, or a house. This is usually only possible if the Defendant has accepted liability for your. STEP 9 Settling your The parties to any dispute are encouraged to resolve it without the need for a court hearing and in the majority of cases, once both parties have assessed the evidence in detail, it is possible to negotiate a settlement. Your case may be settled because the Defendant no longer feels they are in a position to defend the case or proceed to trial. If the case is brought by a child, or someone who lacks capacity to manage their own affairs, the court must approve any negotiated agreement. STEP 10 Valuing your As well as investigating whether there is a, work will also be done to assess the amount of compensation to you will be entitled to if the succeeds The purpose of compensation is to return you, as far as possible, to the position that you would have been in if the medical negligence had not occurred. 3. Funding your 8. Interim payment

7 7 The amount of compensation you ultimately receive will depend upon the severity of your injury and the financial consequences of that injury. In many cases, a full investigation as to how much compensation you are likely to receive will not be done until the preliminary medical issues have been considered. However it should always be possible to gain a broad outline of the damages you are likely to receive at the beginning of the case. It will be impossible to be more precise at the beginning as evidence will have to be obtained to complete the details and this can take time and involve additional experts. The amount of compensation you ultimately receive will depend upon the severity of your injury and the financial consequences of that injury and will take account of: 1. Your pain and suffering ( general damages ) and loss of amenity (the effect the injuries have had on your day to day life including hobbies); 2. Any financial losses and expenses that you have incurred as a result of your accident ( past losses ); Evidence will be required to establish these losses. It is therefore very important to keep an accurate record of any expenses you incur and any financial losses you suffer together with all the supporting evidence you can obtain to include pay slips, receipts etc. 3. Any financial losses and expenses that you will incur as a result of your accident ( future losses ). Pain and suffering This is an amount of money to compensate you for the pain, suffer and loss of amenity attributable to your injury. The Court will consider guidelines and previous similar cases when attempting to value this part of the award. Loss of earnings Whether you were employed, self-employed, unemployed but looking for work, or a child at the time of your injury, you are entitled to for any loss of earnings you have suffered, or may in the future suffer, as a result of your injury. Amongst other things, this could include: loss of earnings including basic pay and overtime; any amounts repayable to your employer under your contract for employment for monies paid whilst you were off sick; any adverse effects on your promotion prospects; any loss of benefits of employment such as private medical insurance, car, fuel allowance, car servicing, insurance, free/ reduced food at work, concessionary fares, free board and lodgings, cheap loans/staff discounts, SAYE or share option schemes, allowances including children s education and housing, telephone allowance and mobile phone; any possible loss of pension; and,where you are self-employed, any effect on the business /growth of the business. You may also be entitled to for your partner s loss of earnings, if he/she has had to take unpaid time off as a consequence of your injury. 3. Funding your 8. Interim payment

8 8 I found you to be very patient and helpful...i am very pleased with the closure of this case and I am grateful to you for your sensitivity towards myself and my family... Mr T, Hertford Assistance from others Whether or not you have paid for it, you can often recover compensation for those who have provided and/or will provide assistance to you in the future as a result of your injury. Amongst other things, this could include: Nursing assistance; Domestic assistance, e.g. shopping, cooking, cleaning, laundry, ironing; The additional cost of maintaining your accommodation including DIY; Gardening; Car maintenance costs. Medical treatment and prescriptions You may be able to recover the cost of any private specialist treatment which has been required or may be required in the future as a consequence of your injury, for example, any medical treatment, physiotherapy, occupational therapy, speech and language therapy etc. You are also entitled to the cost of individual prescription fees, pre-payment prescription certificates, painkillers, bandages etc in so far as they relate to your injury. Accommodation It may be that as a result of your injury, you have different accommodation needs. The cost of adapting your home to suit your new requirements can be ed as can the extra costs associated with any necessary new home. If there are extra running costs such as additional heating and lighting expenses these can also be included in your. Specialist Equipment A can also be made for any special equipment bought as a result of your injuries to help you manage including wheelchairs, grabs, stair lifts and bathing aids. Miscellaneous Costs You may also make a for any other financial losses incurred as a result of your injury, such as extra washing expenses, special diets, cancelled holidays, the additional costs of going on holiday, hairdressing, babysitters, telephone calls and travel expenses. Compensation may either be paid as a single lump sum or as ongoing annual payments ( periodical payments ) or a combination of the two. 3. Funding your 8. Interim payment

9 9 Thank you very much for all your hard work and getting such a brilliant result without having to go to court. I am very pleased with everything you have done for me... Mrs F, Bishop s Stortford STEP 11 Provisional damages If there is a possibility that your injury will get worse in the future, it is possible for the court to assess the value of your injury as it stands at the time of the trial/settlement, but also make an order allowing you to come back to court within a specific time frame if your condition deteriorates in a way anticipated by the medical experts. Any change must be a serious deterioration and must occur within a pre determined period and so these types of award are quite unusual STEP 12 State benefits If the case is successful, certain state benefits you have already received may be deducted from your compensation and refunded to the Government In addition, if you receive compensation, your entitlement to future benefits may be affected. In some cases if may be possible to set up a trust to prevent this happening. 3. Funding your STEP 13 Court of protection If you have a serious mental disability and are not able to manage your affairs, an application will need to be made to the Court of Protection for a Deputy to be appointed. We can assist with the court application and provide advice to the Deputy. These costs will form part of the compensation sought in your. 8. Interim payment

10 10 If legal are not started in court within the three years, the case is then time-barred or statute barred as it is sometimes known. STEP 14 Time limits In England and Wales, a medical negligence must normally be brought within three years of the date of the accident or the date that you knew that your injury was linked to the original accident whichever is later - the date of knowledge. The date of knowledge can be much later than the accident date. If legal are not started in court within the three years, the case is then time-barred or statute barred as it is sometimes known. Special rules apply for children; for adults with serious mental disabilities; and for fatal accident cases. Although the courts do have discretionary power to allow s which are already outside the relevant time limits these powers are only exercised under very limited circumstances. 3. Funding your 8. Interim payment

11 11 The outcome for me was an award which certainly exceeded my expectations I would commend highly your performance. It was particularly reassuring that you took time to come to my house and meet with my family to explain procedures at such a difficult time Mr P, Cambridge How can Tees help? We are recognised to be one of the leading ant medical negligence practices in East Anglia in the Legal 500; We hold corporate accreditation from the Association of Personal Injury Lawyers (APIL); A number of our solicitors are on the referral panel for AvMA (Action for Victims of Medical Accidents) and on the referral panel for the Law Society s clinical negligence referral panels; All our medical negligence lawyers belong to APIL and one is a member of the Clinical Negligence Specialist Assessment Panel; We are an approved provider of legal services by Headway (the brain injury association); We are recognised as an approved provider of legal services by CBIT (the Childhood Brain Injury Trust) and by the UK Acquired Brain Injury Forum. With these credentials you can be sure you will be in safe hands so for further help contact us on the details overleaf.

12 teeslaw.co.uk This Guide has been prepared to provide useful information but should not be considered as a substitute for advice on any specific case. Tees Law is a trading name of Stanley Tee LLP regulated by the Solicitors Regulation Authority. Registered in England and Wales number OC / Bishop s Stortford Cambridge Chelmsford Great Dunmow Northampton Saffron Walden