medical injury a claimant s guide

Transcription

1 medica injury a caimant s guide The ega caims process is not a simpe one and cinica negigence caims are amongst the most compex. We have over three decades of experience representing patients and recovering hundreds of miions of pounds of compensation in this fied, and we wi be there at every step of the way to advise you. We are confident that our experience and communication skis wi ensure that we can hep minimise any anxiety you may have about bringing a caim. We are committed to ensuring that you recover fair compensation for your injuries. Even at this eary stage we woud ike to give you an overview and attempt to demystify the process. Most cases foow a pattern of steps. There wi, of course be variations, each case requires a unique evidentia, tactica and procedura approach, but this outine shoud go some way to prepare you for the further expanations we wi give you. It is aso very important that you understand from the outset the costs of making a caim. We do everything we can to resove caims swifty but you need to be prepared for a reativey ong investigation. Your input and prompt response are key to a successfu concusion. Pease read this guide and keep it handy so you can refer back to it throughout the case. Key things you must know about a medica injury caim Parties to the Caim You are the Caimant. The hospita or GP against whom the caim is made is caed the Defendant. There are two main ega issues in most caims. These are responsibiity for injury (awyers ca this iabiity) and the amount of compensation or damages (which awyers ca quantum). Liabiity As the Caimant, the burden is on you to prove: Breach of Duty You have to prove your treatment has faen beow the standard of the reasonaby competent practitioner in that fied of medicine, and at that time. Courts have decided that they need guidance in estabishing this standard from an independent doctor practicing in the same fied of medicine and at the time in question. Causation It is not enough to say that the doctor made a mistake and you suffered an injury. You have to prove that the mistake caused the injury. Again this issue must be proved by a doctor, who is an expert in the reevant fied. Proportionaity Since Apri 2013 a new test has been introduced to assess how much your opponent shoud contribute to your ega costs if you win your case. In order to recover a contribution from the other side, we have to show that: 1 Each eement of your bi of costs (refecting the work undertaken) was reasonaby and necessariy incurred in order to advance your case 2 That the overa costs caimed are proportionate. The question of what is or is not a proportionate overa bi or contribution to your ega costs wi depend upon whether your costs bear a reasonabe reationship to: a) The extent to which the vaue of your caim is in dispute b) The compexity invoved

2 first we isten then we advise c) Any additiona work caused by the conduct of the Defendant d) Any wider factors invoved such as reputation or pubic importance. There is currenty no guidance from the Courts on how these guideines wi be interpreted in cinica negigence caims. We are simpy tod that the question wi be decided on a case by case basis. What they reinforce, however, is the need for us to work together with you as efficienty as possibe and to avoid incurring costs wherever possibe. We wi aso have to consider whether even though a particuar task or report, for exampe, wi assist with a particuar eement of your case it is reay worth obtaining. This may be because the Defendants have aready made substantia admissions concerning a particuar eement of the caim and the cost of arguing over the remainder is ikey to exceed the vaue of what is invoved. The tests are obviousy not intended to be entirey based on the financia vaue of your caim but as you see can be affected by compexity and how the other side conduct themseves. If they create work for us by deaying or being unreasonabe then we shoud be abe to persuade the Court that you shoud not pay the penaty in reation to any resuting disproportion in costs. This test wi appy equay if you become iabe for the other side s costs for any reason, most obviousy because we have faied to beat a Part 36 offer (see beow). That is if our (your own and our) conduct is regarded by the Court as having unreasonaby increased costs, the other side may be abe to justify their own otherwise disproportionate caim for costs against you to be deducted from your compensation. Costs which have aready been incurred and which are then considered by the Court to be disproportionate may not be payabe by the Defendant and therefore may be deducted from your compensation. Costs Budgeting This is something ese that is new since Apri It remains to be seen how it wi work in practice. If proceedings are issued, the Court wi require both parties to prepare and exchange a Costs Budget. This wi set out the costs aready spent and the costs each party needs to spend to competion, incuding our fees, expert fees and Barrister s fees. If the Court considers the costs are not proportionate, the budget can be cut and this wi affect the work we can do on your caim. We wi first send the Costs Budget to you to agree, as this wi affect the amount you wi have to contribute towards your costs. You must respond with your agreement or comments prompty as, if the Court does not receive the Costs Budget on time, the Defendant wi not be ordered to pay your costs (apart from court fees). If circumstances change foowing the submission of the Budget we can appy to vary it. It wi be important to do so if we expect an increase in costs which was not previousy anticipated. Costs of Your Caim (uness you are pubicay funded) We have written to you about how your caim is funded and how we wi assist in recovering costs from the Defendant if you win your caim. You shoud pease bear in mind that there wi be a deduction from your fina damages as a contribution to your costs and there wi be a deay in us reeasing a proportion of your damages to you unti costs are agreed or ordered by the court. Steps to be taken in a medica injury caim The way a caim is conducted and the steps taken wi depend on the nature of the caim and to some extent its vaue (see proportionaity). We wi expain the steps to you at the appropriate stage and we encourage you to ask if there is anything you do not understand. We have set out beow how a typica caim may proceed. However, there may be additiona stages required by the particuar issues in a case or work may have to be imited in order to remain proportionate. The two issues of iabiity and quantum may or may not be deat with at the same time. In appropriate cases, the issue of iabiity wi be deat with before any detaied work is done on the vauation of the caim. We dea with them separatey in this guide. The steps in the iabiity phase may be cut short if the Defendant accepts iabiity. The same appies to the quantum phase if an acceptabe offer is made. 1 Your Statement You wi have tod us something about what happened to you and at an eary stage we wi usuay prepare your words into a statement. This wi ater be shown to medica experts on both

3 injury compensation aongside rehabiitation sides and to the Defendant after any necessary amendment. Remember that it is your statement and so athough we wi have prepared it, you can and shoud personaise it: make it your own by adding and changing words where necessary. The Court Rues require certain documents to be certified with a statement of truth. We wi ask you to sign these important statements from time to time and in doing so you are confirming the information they contain are true. If you give fase information, you coud be committing perjury, which is a serious offence and it is therefore critica that you review each document very carefuy. 2 Medica records request(s) Your medica records wi probaby be the most important factua evidence in your case. We may need the records from anyone who has treated you, so you need to te us everywhere you have been treated, whether it seems the record hoders may be to bame or not. Record keepers are sti often sow in suppying records and omit sections so the process can be sow. Naturay, these records are treated with the same eve of confidentiaity as the rest of your case. Pease note, however, that as we progress your caim, the Defendant s soicitors and medica experts are entited to see copies of these records, but they too must keep them confidentia. iabiity to which we wi want to direct the medica expert(s).it might be necessary at this stage to revise your statement in response to refect the medica records or correct what you consider to be inaccuracies. 4 Liabiity experts It is important to understand that, athough we can advise that there are aspects of your treatment that warrant further investigation, we cannot, as awyers and non-medics, advise whether your caim wi succeed. The success or faiure of your case stands and fas on the evidence of the medica experts we instruct on your behaf. In some cases one medica expert can dea with both issues of breach of duty and causation. In other, more compex cases two or more experts are needed. We carefuy seect and then instruct these experts with a detaied etter which we wi show you beforehand. We aso send them the medica records and your statement. Athough we use the word your to distinguish between the Caimant s and the Defendant s experts, the duty of a experts is to give their honest, independent opinion to the court. Pease note that there can be variabe deays in preparing these reports. The doctors we use are usuay current busy practitioners. We wi te you about their predicted waiting time. Naturay we wi send you a copy of the report once received. At this point we wi have a somewhat cearer idea of the ikey outcome. The report: 3 Examination of medica records Once we think we have a compete coection of your medica records, we wi have them grouped into particuar categories of record, put in date order and given page numbers. This may be done by one of our professiona contacts to whom we outsource this task. They wi treat a information confidentiay, but if you have any concerns about this pease et us know straight away. The records contain a description of your medica treatment. We consider them in detai to identify the issues reating to May be fairy ceary in your favour in which case we can move straight onto the next step. Beware here of some mixed feeings. If you have a case, this means the injury was avoidabe and this truth may hurt. May be uncear even after some attempt at carification. This may mean that further information is needed such as medica records that nobody had anticipated, or a different type of expert or a onger detaied discussion with this expert. May reject the idea that your doctor was in breach of his duty and/or that there was any connection between a mistake and your injury. This may be the end of the caim. In appropriate cases, at this stage we may suggest instructing a barrister and have a meeting (conference) with the barrister and experts to carify the precise medica issues. A barrister is a awyer who speciaises in appearances in court. He/she wi speciaise in cinica negigence cases. The conference may be by teephone or in person, probaby in London. We wi ask you attend with us.

4 injury awyers who aways put you first 5 The Pre-Action Protoco - Letter of Caim and Letter of Response If the expert evidence is supportive of your caim, and when we are cear about the iabiity issues in your case, we wi send a Letter of Caim to the Defendant. This sets out the history of your treatment and our aegations of breach of duty and causation based on the expert report(s). This is an important stage designed to avoid unnecessary Court action. If admissions are to be made by the Defendant, they shoud be made at this stage athough this does not aways happen. The Defendant has four months to respond in writing to the particuar points made and expain their position. Sometimes we agree to an extension of this period. The response given can amount to an admission or set out why they consider treatment was appropriate and/or did not cause the probems you have suffered. Proceedings shoud not normay be issued unti the Letter of Caim has been sent and the detaied response given. Caim, a medica report about your injury and a summary of the ikey vauation of the caim (the schedue of oss) must be served on the Defendant within four months of issue. 7 Defence The Defence is the Defendant s forma repy to the Particuars of Caim, required to be served within 28 days (athough an extension is often reasonabe and agreed). It may admit iabiity but wi not dea with the amount of the caim. Often it merey denies everything. 8 Costs Budget We have expained how the Costs Budget works. This must be fied with the Court within 28 days of service of the Defence, or you wi not recover any of your costs from the Defendant (apart from Court fees). 9 Case Management Conference and Order for Directions/Costs Management Hearing Once the Defence is served, there is a Court hearing that wi produce an Order for Directions which sets out which experts are permitted and the timetabe for your case in terms of most of the issues set out in the steps beow. The Court may aso consider and set the Costs Budget for your case at this hearing. You are not normay required to attend these hearings. 10 List of Documents 6 Issue and service of ega proceedings If the case is to be defended, around this time the barrister is asked to prepare the Particuars of Caim, a forma document which sets out the precise ega and factua detais of your caim. We wi show you and the expert(s) the document and ask for your input and for any further detais which might be necessary. Again you are normay required to sign this to certify its truth. Proceedings must normay be issued within three years of the date of the negigence (there are exceptions which we wi expain if they appy to your case). Once the time for the Defendant s Letter of Response has expired, or if iabiity is denied, a Caim Form wi be issued in appropriate cases. That form aong with the Particuars of Just as the doctors had a ega duty to provide you with your medica records, so you must provide their soicitors with any documents which might be reevant. These may incude medica records from other treating doctors but aso documents about your earnings or others reating to any monetary caim. Each party to the caim must prepare a ist identifying the documents upon which they intend to rey at tria so that there are no surprises. This duty of discosure is ongoing and you must send to us any reevant documents as you receive them. You are required to sign the ist to certify that you have discosed a reevant documents in your possession. This is another Certificate of Truth (see above). 11 Exchange of factua witness statements This is probaby the ast chance for you, safey, to make additions or aterations to your Statement. You may want to rey on the recoections of friends or famiy members to support your case. Their statement(s) must aso be served now. Your statement is exchanged for the statements of any witnesses

5 exceptiona cient service every time This meeting can damage either side s case unexpectedy and can occasionay ead to the case being discontinued by you or setted by the Defendant. 14 Dispute Resoution (ADR) - Round Tabe Meetings that the Defendants wish to ca, incuding those of your treating doctors. These are sometimes reveaing and expain things in the Defence which were not previousy apparent. We wi ask for your comments on these statements as you may be abe to contradict something the doctor says. We send these statements to our experts who may we want to comment on something said by the doctor(s) in their reports. This is the ast opportunity for the expert reports to be finaised. Your statement(s) wi simiary be scrutinized by the Defendant s team (awyers and medica experts). 12 Exchange of expert iabiity medica reports We send your medica expert reports to the Defence Soicitors and they do ikewise with the medica expert reports they have obtained to support their case. We send copies of the Defence reports to you and your experts for comments. This is a key moment. This exchange of expert evidence presents an opportunity for medica experts and awyers on each side to stand back and assess the strengths and weaknesses of their evidence on paper. Admissions may foow from the Defendants. If on the other hand your case ooks weak as a resut of something unexpected raised by the defence experts we wi have to either redress the weaknesses or consider discontinuing the caim. If both parties remain sure of their case, the caim proceeds. 13 Meeting of medica experts In appropriate cases, a meeting may be arranged for the iabiity experts on each side to discuss the issues in the case and to carify the extent to which there is agreement and disagreement between them. An agenda is prepared for their meeting with input from the experts. Lawyers are normay not aowed to attend these meetings. We aways ask Defendants to mediate cases. Both parties have a duty to consider ADR and must have a good reason not to participate. ADR meetings can be hed at any time but more often wi be hed after exchange of experts reports or experts meetings. Normay they wi invove both sides getting round a tabe and discussing possibe settement. 15 Conference with barrister, you, your soicitor and your medica experts At this ate stage the ikeihood is increasing that the case wi be tried by a Judge to a concusion athough there remain a number of opportunities for settement. To prepare for the possibiity of tria there may be another meeting with your experts so that we and your barrister can ask detaied questions of the experts on the medica issues as they have been refined. 16 Offers to Sette or Part 36 Offers The Court ikes Caimants and Defendants to make offers to sette cases, known as Part 36 offers, in order to save the expense and court time invoved in proonging itigation unnecessariy. Offers to sette are mosty confidentia. The judge can t be tod about them unti after his decision. There are serious cost consequences for parties who fai to accept offers which are ater judged to have been reasonabe in the ight of the Judge s subsequent decision at tria. You may be ordered to pay your own and the Defence costs incurred after the offer was made and decined from the remainder of your compensation. Defendants can be ordered to pay up to 75,000 for faiing to do better (from their perspective) than an offer made by you, depending on the vaue of the caim. Offers can be of money or a fixed percentage of the fina sum that is awarded. Such an offer is made to discount the risk that you might ose, and can be made at any time. We wi advise you in detai at the appropriate time. 17 Tria Trias of Cinica Negigence cases are rare because most cases are setted or discontinued. A tria is possibe however.

6 top cass firm with top cass practitioners We wi aways prepare for this eventuaity in appropriate cases. In any tria you are ikey to have to give evidence. This wi usuay be imited to narrow issues and wi not generay take ong. The treating doctors and the medica experts wi aso give their evidence. The barristers ask the questions and wi expain and summarise their cases to the judge. There is no jury. A judge decides but usuay deivers his or her decision in writing a few weeks after the tria. Compensation what is the caim worth? If you estabish iabiity, you wi be entited to compensation or damages, cacuated in two parts Genera damages to represent your Pain, Suffering and Loss of Amenity (PSLA) and past osses and expenses, and Specia damages consisting of any future osses and expenses. PSLA As the name impies, these damages are intended to address the osses you have sustained which aren t financia. They are the unquantifiabe aspect of what you have suffered and perhaps continue to suffer incuding e.g. oss of enjoyment of the activities you used to engage in. These damages are assessed argey by reference to medica evidence (obtained in the form of reports from doctors) and case aw. Reference is often made to a set of guideines prepared (from past cases) by the Judicia Studies Board. Once we have the reevant medica evidence, we can assess how the Courts are currenty vauing your type of injury by comparing it to recenty reported cases of a simiar nature. This can be tricky as no two cases are ever the same. Financia Losses These are spit into: your financia osses to a reasonabe minimum. This means that just because someone ese may be footing the bi one obviousy cannot over-egg the expense. By the same token don t underdo it. You are aso required to mitigate your osses, that is to make them good, within reason. For exampe, if a Caimant cannot do his previous job but can do some work he is expected to seek empoyment and thereby reduce his financia osses. If in doubt, pease ask us. If you have needed care as a resut of your medica injury, the vaue of that care (professiona or famiy) can be caimed if the care was reasonaby necessary. If you have used a professiona carer, then we wi need an invoice, but even if you were ooked after by a reative, we shoud be abe to incude a caim for this. The caim wi usuay be for a notiona houry rate for the hep given but can, in some circumstances, be for ost earnings or part of them if they took time off work. It is very usefu for your caim if you keep a running diary of your expenses and the ways in which your injury is affecting your daiy ife, incuding a note of the things you can no onger do and how ong it takes for others to hep you. It is much easier to note these things as they happen rather than some months or years down the ine. Past osses these are the osses up to settement. If you are funded under a CFA, these osses when added to your PSLA wi be taken into account when cacuating the Success Fee Cap Future osses these are the osses which you are ikey to suffer after settement as a resut of your injuries. If part of your caim for financia osses incudes the cost of past, present or future care or you have purchased items to cope with a disabiity, we wi need to be abe to justify these expenses to the Defendant. The best way of doing so is to obtain a report from a nursing consutant or occupationa therapist who wi cost out these items for us. Any financia osses which fow as a direct consequence of the accident can be caimed. We wi give you a questionnaire designed to highight these and it is important that you keep a running ist of expenses and osses together with receipts if possibe. If you don t te us about your osses, we can t incude them within the caim. Foowing an accident, you are under a genera duty to keep The Court is anxious to reduce the cost and time taken in cases where each party reies upon and cas its own expert evidence. In Cinica Negigence cases each side wi generay be aowed to have their own experts on a iabiity issues (covering breach of duty and causation issues) and wi usuay be aowed to have at east some of their own experts on arge or controversia quantum issues (for exampe the vaue of care needed).

7 ranked top in east angia for medica injury On some quantum issues, however, parties are now required, where possibe, to agree upon the joint instruction of one independent singe joint expert for each speciaist area. If you refuse to see the Defendant s expert, they can appy to the Court to have the proceedings put on hod or stopped. When we have a the reevant information, we wi draw up a schedue of damages setting out a of your past and future osses for your approva, which may require updating as the case progresses. This wi be served on the other side who, in appropriate cases, wi serve their own counter-schedue or may write and say why they disagree with the caims. two to three years you coud sensiby add another months in some cases. You must aso bear in mind that after concusion of both iabiity and quantum parts of your case the assessment and recovery of your costs has to be undertaken. It s ony then that we wi be abe to finaise your account with us. On past performance the costs phase can itsef take anywhere between 6 18 months depending on how arge and how contentious our Bi is and whether a further hearing is necessary. It remains to be seen how the new costs budgeting process wi affect this. If your caim is funded by a CFA, when an acceptabe offer of settement is made, we wi agree with you the amount of the settement that reates to PSLA and past financia osses, so that the success fee cap can be cacuated. This wi usuay be by reference to the figures in the Schedue and Counter Schedue but may aso incude Counse s Advice. Compensation Recovery Unit The CRU deduction If you or your famiy on your behaf have received state benefits as a direct consequence of your accident and you go on to recover damages, the Compensation Recovery Unit (CRU), an agency of the Department of Works and Pensions, wi caw back from your compensation an amount equivaent to those benefits so that you are not paid these monies twice. It is the Defendant s responsibiity to pay these amounts back to CRU so they wi deduct them from your settement. This caw back ony affects benefits paid out for a period of up to five years after the initia injury. We wi send you a copy of any certificate of benefits issued by the CRU which you shoud check carefuy. How ong wi my caim take? This wi vary from case to case. We are dependent on experts and it can take a ong time to obtain a the expert evidence essentia for iabiity issues to be addressed. Once our own investigations are compete then the speed of fina resoution is ikey to be dependant on how the Defendants decide to react. We can give you an estimate once we know more about your particuar case. However, as a genera guide, it may take between 6 12 months to get the first expert s report, a further six months for the pre-action protoco and then from issue of proceedings to tria a further months. This timetabe wi obviousy engthen the more expert reports are needed, and wi be affected by whether iabiity issues are deat with first, separatey from quantum. If these estimates are taken to indicate an overa time period of What can you do to hep your case? Most importanty, we need you to respond prompty to our etters and phone cas and give us prompt instructions. This wi aow us to keep to court deadines and keep up the momentum in your caim. We see each case very much as a team effort and your input into the case is vita. We wi ask you to comment on the important ega documents in the case incuding the medica and other experts reports. We rey upon you to provide us with detais and as much documentary evidence as possibe regarding your financia osses, both past, present and future. You aso need to keep us reguary updated with your expenses so that we can incude them within your caim. You wi have to agree with us the Costs Budget for your case, and assist us to stick to it. and finay... getting the most from your compensation Having secured the best compensation settement we possiby can for you, we d aso ike to hep ensure that the money works for you as effectivey as possibe in the future. Everyone s circumstances are different and so it is crucia that your financia needs are ooked at on an individua basis.

8 awyers who are aways here to hep Periodica Payments a reguar income In arge cases part of your compensation coud take the form of payments under periodica payments so that part of the money wi come to you as annua payments paid by the Defendant. We wi be discussing what is best for you throughout; much depends on the size of the settement, the nature of your injury, and whether you are an adut or a chid. Some of your needs to be considered may incude: Moving to a property adapted for your needs, or making modifications to your existing home Arranging the payment of any carers or support workers empoyed to hep you The appointment of a professiona Deputy to hande your affairs The tax impications and preparing your tax return. Lump sum payment If you receive your compensation as a ump sum payment, it wi essentiay be yours to use however you wish. This added fexibiity can be a big advantage if you invest and use the money wisey. However, if it is not used to best effect, you coud find yoursef with itte or no money eft in a few years time, and a whoe range of probems that coud have been avoided. The arger your settement, the more is at stake and the more important it is that the right decisions are made, with the hep of an appropriate Independent Financia Adviser. Court of Protection team If you have suffered a head injury, it may be that you do not have the capacity to manage your own financia affairs. If that is the case you wi need a Deputy to be appointed under the Court of Protection. We have a dedicated Court of Protection team who can dea with the appointment of a Deputy, and the ongoing management of your finances for you. Putting the money into a Trust This means having two or more peope ooking after the money for you to protect your interests. As we as heping to ensure that the money is invested sensiby for your ong term future, it may aso be a necessary step to ensure that you are sti eigibe for means-tested benefits. Our Lifetime Panning team can advise you on whether a Trust is right for you. Long-term issues Whichever type of settement you receive, you shoud review your Wi or, if you don t yet have one, we shoud hep you draft one. This wi ensure that if anything happens to you, any property or investments that are funded by your settement can be passed on to your famiy members or others who have heped to care for you, in the way that you wish. Depending on the nature of your injury, and whether you are we enough to be taking care of your own financia affairs, you may aso wish to think about a Lasting Power of Attorney (LPA) as part of your ong term panning. There are different types of LPA, and we can expain the differences, but basicay they are a way of giving someone ese the power to dea with your financia affairs and/or make decisions about your medica treatment if you become unabe to do so for yoursef. At Ashton KCJ we have speciaists who can hep you to dea with a of these issues, so that you can get on with your ife without financia worries. Depending on your circumstances this coud incude someone from our Court of Protection team, our associated Independent Financia Advice Service, or a Lifetime Panning soicitor who speciaises in Trusts. The awyer who is handing your caim wi introduce you to the right person as your case progresses. We hope you wi refer back to this guide as your caim progresses, and ask us about any matters that are not cear to you. We wi do our utmost to hep you Ashton KCJ is authorised and reguated by the Soicitors Reguation Authority (Recognised Body number 45826). The information contained in this guide is of a genera nature and specific advice shoud be sought for specific situations. We beieve the information to be correct as at the time of pubication, Apri Whie a possibe care is taken in the preparation of this eafet, no responsibiity for oss occasioned by any person acting or refraining from acting as a resut of the materia contained herein can be accepted by the firm or the authors.