Guidance in Clinical (Medical) Negligence Claims

The law regularly changes, and the following notes are intended for general guidance only. They are neither comprehensive nor necessarily applicable to every claim, and should not be viewed as an alternative to taking professional legal advice.

Introduction

Clinical negligence, formerly known as medical negligence, is the process by which a patient takes his or her medical attendants to a civil court for compensation.

In order for negligence to be proven a claimant (usually the patient), must show that the healthcare professional owed a duty of care to the patient, that the healthcare professional was negligent in his or her management, and also that the patient suffered harm as a result. The claimant has to succeed on both these ‘tests’ to obtain compensation.

General Damages

The value of compensation due will then be assessed by reference to the medical evidence obtained in support of the claim and on the strength of decided case law and judicial guidelines. If, for example, you were injured in an accident and the subsequent treatment of your injuries was negligent, you will only be able to claim (as part of the clinical negligence claim) compensation for the further harm which you have suffered as a result of this negligence and not for the original injuries.

The award will be for ‘pain, suffering and loss of amenity’, and as such cannot be readily measured in monetary terms. When the value of a head of compensation has to be assessed in this manner it is referred to as ‘general’ damages.

Special Damages

When a loss can be quantified, or has a specific value, this is referred to as an item of ‘special’ damage. Again, you will only be able to claim (as part of the clinical negligence claim) for special damages which have been incurred as a direct result of the healthcare professional’s negligence. Some examples are set out below, together with a brief guide in italics as to the type of evidence you will need to provide as proof or evidence of the loss, or what may be agreed without evidence (so long as that loss has actually been sustained). You should keep a record of all expenses you wish to claim for and save all relevant documentation in support:

Treatment costs:

Fees / Receipts / Invoices

You may be able to recover the cost of any treatment which is necessary to “put things right” on a private basis, but again only if this is required because of the negligence of the healthcare professional and you show that the treatment has been recommended by your current medical practitioner.

Travel costs associated with the incident:

Receipts are recommended, but the healthcare professional’s insurers or other representatives may well agree a round sum of around £25.00 - £50.00, if this is consistent with the amount you actually have travelled because of the incident.

Fuel costs:

These will generally be agreed at around 35 pence per mile. You will need to keep a record of mileage travelled and what this was for.

Only travel costs associated with the claim will be considered and you will not be paid where there is a duplication of claims.

Postage/phone calls/miscellaneous costs associated with the incident:

These may well be agreed at around £20.00. You will need to produce strong evidence to persuade an insurer or an eventual court to pay more.

If applicable, medication, including prescriptions:

These may be agreed at around £10.00 - £20.00, if you did in fact take medication which was necessary because of the further harm suffered. You will need to produce specific proof (i.e. by way of receipts, supported by the medical evidence) if you wish to claim a higher figure.

Loss of earnings:

If you have suffered a short-term loss of earnings, the conventional way to calculate your net loss is by obtaining an average figure from pay-slips for thirteen weeks prior to the incident, if employed, or we will need to request a report or letter from your accountant, if self-employed.

If you are off work for a significant length of time we may well need to investigate further, review your income over a longer period of time and potentially recover your personal accounts and/or other documentation and evidence in support of this head of claim.

If you are being paid by your employers while you are off work they may wish to recover their outlay, but this must be provided for in your contract of employment.

Lost holiday:

It can be convenient to claim lost holidays at the same daily rate as your income, for example when you have to take time off as holiday, while you recuperate from the further harm suffered. If you have actually missed out on taking a holiday because of the incident, then please provide documentary evidence of the cost of the holiday, so that we can try to recover that lost expense on your behalf.

Care:

The time and amount we can recover for care provided by members of your family will depend on the extent of your further injuries and the degree of care reasonably required. In very many cases there will be no claim for care and assistance.

Any care claim, and the amount of assistance, will need to be supported by the medico-legal expert.

The courts tend to apply set hourly rates with a 25% reduction when care is provided by a family member or friends, to allow for the ‘gratuitous’ nature of that assistance (primarily because tax will not be paid on the sums received).

You should keep a diary record of the type of assistance provided, the number of hours spent daily, who provided the care and over what periods the care was needed.

Please bear in mind that any claim for care must be realistic and the number of hours claimed must accurately represent what has been done.

In more serious cases, it can be helpful to present a care claim in three sections, to cover an initial period of significant symptoms and higher dependency, followed by a second and third period, as the recovery continues and needs reduce.

The above list relating to special damages is of course not exhaustive, but we hope will assist.

Unfortunately the courts do not award compensation for the general inconvenience of having been involved in an incident of clinical negligence and/or the overall time engaged and administration this inevitably involves.

Duty to Mitigate

The law imposes a duty on all claimants to mitigate loss in all parts of the claim. Therefore you must not expect to recover compensation for all losses incurred, if there is some way you can control the expense or cost involved.

For example, if you are fit to return to work, or it is likely that the medical expert will consider that you could have returned to work by a specific date, then you should not expect to receive compensation for loss of earnings after that date.

Rehabilitation

A ‘Rehabilitation Code’ operates alongside your claim, under which both parties are required to consider as early as possible whether you have reasonable needs which could be met by rehabilitation treatment or other measures and how those needs might be addressed.

Please inform us straightaway if you think you may need rehabilitation treatment.

Funding

If we assess prospects of making a successful recovery at 51% or more, we will consider offering to act under the terms of a conditional fee agreement, and, if necessary, but not before consultation, to take out ‘after the event’ (ATE) legal expenses insurance, to protect you against the risk of a defendant’s costs order in certain circumstances, and to insure for the actual out of pocket expenses of the claim; such as the costs of obtaining medical evidence, or court fees.

As an example of a potential costs order against you; in the event that the defendant makes a formal offer (a Part 36 Offer) to settle your claim, and you reject the offer, or if the offer expires, then if the claim progresses to trial and the Judge determines that you should have accepted the above offer (or if a lower amount is awarded), you will be responsible for payment of the defendant’s costs from the expiry / rejection of the formal offer.

However, if you have secured a valid ATE policy which provides you with protection from adverse costs, you may not have to pay anything to the defendant in the event that a costs order is made against you, because these costs will be met by the ATE insurers.

If an ATE policy is taken out, you will ultimately be responsible for payment of the insurance premium. However, you will only have to pay the premium if your claim is successful.

Please see below for further details on Part 36 Offers.

If you do have ‘before the event’ (BTE) or pre-existing legal expense insurance which offers suitable legal expenses cover, we will contact those insurers. If they confirm their indemnity and authorise us to act, we will cancel the ATE policy at no cost to you, and we will also cancel our CFA and will run the claim on a ‘private client’ costs basis, chargeable to your insurers and / or to the defendant’s insurers if the claim succeeds.

If we are prepared to handle your claim under the terms of a CFA, we will usually not charge any costs if the claim fails. Exceptions may apply if, for example, we are misled by a claimant, or if the prospects of success alter to 50% or less, but the claimant still wishes to proceed.

However, if a claim succeeds, we will charge a success fee, which is usually calculated at around 25% of the value of the claim for general damages and past financial losses.

Exceptionally the success fee may have to be agreed at a higher rate (if we are prepared to act), to reflect an increased risk, for example if the prospects of success are assessed at lower than 51%, or if we know or assess that we will be facing a determined Defence, especially on a claim where other solicitors have refused to act, or perhaps refused to continue to provide representation.

Liability

You will only receive compensation if you are successful in proving that the healthcare professional is shown to have acted in a manner that no other similar professional would have done. The healthcare professional will not be negligent if he or she has acted in accordance with a practice accepted as proper and responsible by a responsible body of medical practitioners skilled in that particular area of medicine.

Causation

You will also be required to prove that further harm has resulted which would not otherwise have occurred, i.e. the action of the healthcare professional was more than 50% likely to have caused the harm.

The Compensation Recovery Unit ("CRU")

Your opponent’s insurer or other representative is prohibited, at law, from paying you any compensation, until the claim has been registered with the Compensation Recovery Unit of the Department of Work and Pensions, and a Certificate of Deductible Benefits, or a ‘CRU Certificate,’ has been issued by the DWP.

The certificate states whether or not any benefits have been paid to you because of the incident. If not, the insurer or other representative is free to pay you any agreed compensation.

If benefits have been paid, then these have to be refunded to the DWP, by the insurer or other representative, before you are paid the balance of your compensation.

Compensation Payments, Means Tested Benefits and Personal Injury Trusts

If you receive certain state benefits, local authority assistance and/or other sources of state-assisted help, either now or in the future, you may be in danger of losing your entitlement to these, or prevented from claiming them, as a consequence of receiving a personal injury damages award.

This will depend on your personal circumstances, both now and in the future, but, generally speaking, if you are in receipt of means tested state benefits, a payment of compensation (whether interim or final) will count as capital, when assessing eligibility for most means tested benefits.

Means tested benefits include:

  • Income-based Jobseeker’s Allowance
  • Income-related Employment and Support Allowance
  • Income Support
  • Pension Credit
  • Housing Benefit
  • Council Tax Benefit

If you deliberately deprive yourself of capital in order to claim or increase your benefit, you are still treated as possessing that capital, for assessment purposes.

This may include spending money to carry out necessary repairs or alterations to your home, an expensive holiday, paying off debts, or family loans, and/or making gifts to friends or family.

This problem can be solved by establishing a Personal Injury Trust; otherwise frequently referred to as a "Special Needs Trust".

Under Social Security Regulations, personal injury damages awards held in a Personal Injury Trust are ignored for most means tested benefits and other sources of state funded financial help.

Once the Trust is set up, an account is opened by your Trustees for your benefit and this is run on the understanding that they will look after it in line with your wishes, and rules designed to protect your interests.

Social Security benefit legislation can be complex and is not an area in which we practice, or can advise you on in the context of your personal injury claim.

Therefore, please note that we will not assess whether or not a personal injury trust would be appropriate in your case. It is your responsibility to evaluate your own circumstances, and to take independent financial advice if you consider this to be necessary.

However, we will be happy to refer you to an independent financial advisor, specialised in this field, if you ask us to do so, in which case we may receive a referral fee.

An initial consultation will probably be offered by the financial advisor free of charge, but any professional fees which are incurred for this independent financial advice will be your responsibility and will be completely separate from the terms of our engagement.

They will probably not be recoverable from your opponent, so you will need to carefully assess the financial value of setting up a trust, against the expense this will involve.

The Claims Process

The general management of clinical negligence claims is subject to a procedural protocol, set out in the Civil Procedure Rules, which provides a framework and timetable for the steps we take and the way in which we obtain evidence in support of the claim, and in particular the medical evidence.

This pre-action protocol for the resolution of clinical disputes is designed to keep costs under control, minimise delay in the claims process, and encourage co-operation between the parties.

Once you instruct us to pursue your claim, we will consider whether there are any ‘limitation’ issues (see below), whether you require rehabilitation and whether you should follow any healthcare provider’s complaints procedure.

We will then obtain copies of your medical records from any hospital involved and your general practitioner, regardless of whether your claim is against one of these parties. Your medical records must be provided within 40 days or, alternatively, an explanation within the same time period regarding any delay. If your records or an explanation are not provided, we can seek an Order from the Court compelling their disclosure.

Once we have received your medical records, we will collate, paginate and index these and check that all records which specifically relate to the incident about which you are complaining have been provided.

At this stage, we may decide to obtain a "screening" report from a suitable medical expert, which will provide an overview of the incident and whether the expert considers that there may have been negligence which caused you further harm.

If so, we will then send a "letter of notification" to your opponent, explaining that a claim is being contemplated. Your opponent is required to acknowledge this letter and advise where any subsequent "letter of claim" should be sent.

Your opponent will then consider whether to commence their own investigation and/or obtain expert medical evidence at this stage, or whether to wait until they receive the letter of claim. Both parties must bear in mind the need for rehabilitation and any issues regarding limitation (see below) throughout this process.

The letter of claim will then be sent, providing details of what negligence is alleged and what further harm has been caused. If necessary, we will at the same time provide copies of the relevant medical records in support of them or, alternatively, a list of these. We are also required to provide a chronology of events, together with any available evidence regarding your injuries and other losses.

Your opponent or their representatives are required to provide a detailed ‘letter of response’ within four months from the letter of claim. This will set out any admissions or denials with regard to the alleged negligence and harm caused and will identify any medical records which it considers are relevant but were not referred to in the letter of claim. The letter will also indicate whether your chronology of events is agreed or suggest an alternative chronology.

The parties are then required to consider whether the matter can be concluded without further recourse to the Court. This includes ‘non-financial resolution such as a face-to-face explanation, further treatment and/or an apology. It is also possible for there to be a financial settlement, although made without any admission of any negligence or harm being caused.

Both parties must then take stock regarding proceeding with the claim. This involves seeking to narrow the issues in dispute, agreeing the chronology and key facts involved, seeking to identify any issues such as limitation which could be dealt with on a preliminary basis, what, if any, further expert evidence is required, and whether both parties have complied with the pre-action protocol.

We will normally only go to court once this process has been exhausted, liability remains in dispute, if the injuries fail to resolve within three years and we have to issue proceedings on limitation grounds, or if we are unable to reach a compromise agreement with your opponent’s representatives.

If a child is being paid compensation, a district judge will usually need to approve the settlement. This will typically take place at a relatively informal hearing in a court office. The normal Order is for damages to be invested in the court special interest account until the child reaches the age of 18 years.

Part 36 CPR

Either party may at any time place the other party under very strong pressure to settle the claim, by making an offer pursuant to Part 36 of the Civil Procedure Rules 1998, as amended.

If a subsequent outcome is more favourable to the party making the offer, then significant costs penalties can apply.

When a Part 36 Offer is made, if your claim is being funded outright under a LEI policy, or even if the LEI policy is limited to payment of a defendant’s costs, then as a broad rule, if you receive an offer which is within 20% of what you might expect to achieve at a court hearing, the LEI indemnity will probably be withdrawn.

At this point it is also usual for us to review whether or not we can continue acting under a CFA, or whether this should be amended to a private client paying retainer, if the claimant wished to bear the increased risk of carrying on with their claim.

Limitation

Under the Limitation Act 1980, a claim for damages for negligence shall not be brought after three years following either the date on which the harm was caused or the ‘date of knowledge’ of the injured person (if later). One exception to this is where the claim involves a child, in which case proceedings must normally be issued by their twenty-first birthday. The person’s date of knowledge is, amongst other things, the date on which the injury in question was significant and that person knew that the injury or harm was wholly or partly attributable to the negligence of the defendant.

If the case has not settled within this period then, with few exceptions, you will have to issue court proceedings or the claim will become statute-barred and you will lose all entitlement to compensation.

Generally

If a claimant delays bringing or advancing a claim, then, as time goes by, it can become harder to prove the claim, on both liability and quantum. It can also become more difficult to obtain funding for the claim, to find a solicitor willing to act, or an insurer able to underwrite the claim against a defendant’s costs.

So, it is in the claimant’s best interests to work with a solicitor, to keep appointments, and to deal promptly with all correspondence as the claim progresses.

It is also important to remember and be aware that a claimant is generally involved in just one claim, while the solicitor will be handling hundreds of claims, often on very low fixed costs, and so co-operation and assistance from a claimant throughout their claim is always essential.

Broadgate Legal Solicitors