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: