How can I fund the legal costs of my medical negligence case?
Initial advice is free, whether in person, by telephone or by e-mail. If we believe that you may have a case, we will advise you on any funding options. We may be able to deal with your case by way of a Conditional Fee Agreement (also known as “No Win, No Fee”). Legal Aid may be available in a birth injury case where a baby has sustained cerebral palsy and brain injuries. Other means of funding include legal expenses insurance and trade union funding. Your case could be privately funded if no other form of funding is available to you.
Do you deal with Legally Aided cases?
Yes, we do. We are one of a select few departments of clinical negligence solicitors in West Yorkshire to have a franchise from the Legal Aid Agency, authorising us to deal with publicly funded medical negligence cases. In new medical negligence cases, Legal Aid is only available to babies with brain injuries and cerebral palsy, sustained at birth.
Will Legal Aid be available to me?
Legal aid is now only available to fund cases involving brain injuries sustained at, or shortly after birth. Your Solicitor will discuss this in more detail with you at the beginning of your claim. If your case is not within that category, other forms of funding will be considered, such as Conditional Fee Agreements.
We will consider whether you are likely to qualify for Legal Aid, to investigate your medical negligence case and, if appropriate, we will prepare an application to the Legal Aid Agency for public funding for you.
Firstly, you must be financially eligible for public funding. If the claim is on behalf of injured children, they will be assessed on their own income and capital (if any) rather than on the means of parents.
Secondly, we must satisfy the Legal Aid Agency that you have reasonable prospects of succeeding in a claim, subject to medical evidence to be obtained.
Thirdly, in most cases the likely compensation should exceed the likely legal costs. The legal costs should be considered to be proportionate to the likely damages.
Depending on your financial circumstances, if the Legal Aid Agency grants you funding, your case may be wholly funded by public funding, or they may offer you funding subject to you paying a contribution from your capital or regular contributions from income.
Can my case be funded on a no win no fee basis?
We do deal with many clinical negligence cases by way of a Conditional Fee Agreement, but we make decisions on a case by case basis. If this would be an appropriate form of funding for you, we will assess the prospects of success, the risks of your case and whether legal costs are likely to be proportionate to compensation. Once we have assessed your case we will let you know if we can offer you a Conditional Fee Agreement, often described as “no win no fee.”
Is there a risk that I might have to pay my opponent’s costs?
While the vast majority of clinical negligence claims which we issue at Court will succeed, if you are not Legally Aided we would recommend that you take out an after-the-event insurance policy to cover the cost of disbursements and to protect against the risk of having to pay the other side’s legal costs. We will discuss this with you, in appropriate cases, when considering funding of your case and before any court action is commenced.
The general rule in new cases is that a Claimant who loses a case would not normally have to pay a winning Defendant’s costs. However, there are exceptions to that rule and it is always possible that you could be ordered to pay a winning Defendant’s costs. After -the-event-insurance will protect against that risk and also cover the cost of disbursements if you lose your case. Disbursements are expenses such as fees for medical records, medical experts’ fees for reports and court fees.
Is there a time limit to bringing a clinical negligence claim?
In the majority of cases, as summarized below, there is a limitation date by which a claim must be issued at court and after which it is too late to proceed with the claim. It can take a year to a year and a half or more to investigate a clinical negligence claim. Therefore, if you might be considering investigating a claim we would recommend that you contact us as early as possible to try to leave sufficient time for us to investigate before limitation expires.
A child or person who is injured before the age of 18 has until their 21st birthday to issue a claim at Court.
In most cases, under the Limitation Act 1980, a person aged 18 years or more must issue a claim at Court within 3 years of the date of the injury or they will be statute barred from bringing a claim in the future. However, if you did not find out until a later date about your injury or diagnosis or that it may have been caused by negligence, you might be able to rely on that later “date of knowledge,” so that the 3 year limitation period would be deemed to start running from the “date of knowledge.”
In certain cases, if the injured person is mentally impaired or suffering from psychiatric illness, then it is possible that the normal limitation rules might not apply, if they are deemed not to be capable of managing their own affairs. In certain cases, the 3 year limitation period might not apply at all or might not be deemed to start running unless and until the person recovers and ceases to be under such a disability. However, this would not apply in every case of psychiatric and mental impairment. It would depend on the individual facts and would be subject to medical or psychiatric expert evidence. Therefore, you cannot assume that the normal limitation rules will not apply just because you have a psychiatric illness or some mental disability or impairment. Hence, it makes sense to seek legal advice as soon as possible.
There may also be other very exceptional cases in which the normal limitation rules will not apply. However, in the vast majority of cases, a strict 3 year limitation period will apply.
Even if it looks to you as if you may have lots of time to bring a case, we would recommend seeking advice as soon as possible as limitation can be complex. Additionally, if the events in question took place many years previously, it might be difficult to locate medical records, x-rays or scans or some or all of these may even have been destroyed. Your own memory and the memories of medical staff of the events in question are more likely to fade after a longer period.
Why investigate a claim?
The aim of a clinical negligence investigation is to obtain evidence, including independent medical expert opinions to establish whether you have been injured and or suffered other losses as a result of clinical negligence. If you have suffered injuries and other losses as a result of negligence, we will then compensation on your behalf. The compensation is intended to compensate you for your injuries and financial losses and, if appropriate, to help provide for your future care and expenses. Compensation is not intended to punish the healthcare provider who made the mistake.
Compensation can be recovered to provide for your past and future losses, past and future care and assistance, costs of medical treatment and rehabilitation, medical aids and equipment, orthotics, accommodation and adaptations to accommodation and to provide financially if you have suffered a loss of earnings or are unable to work as a result of your injuries.
In successful cases liability may be admitted by the Defendant and there is often judgment on liability. The Defendant may also make an apology. However, an admission of liability and apology are not guaranteed, as some cases are settled for financial reasons, for example, if an acceptable financial offer has been made and may not be beaten at trial or because of the risks of litigation in your case. Therefore, compensation in some cases may be agreed, awarded or accepted without an admission of liability or judgment on liability and without an apology.
If my claim is successful, what compensation will I win?
The amount of compensation you receive if you win your case depends upon the type and severity of your injury, your symptoms, whether or not the injury is permanent, the prognosis for the future, whether you have suffered loss of earnings, whether or not you are able to return to work, whether or not you require nursing or other care and assistance, including assistance with personal care, housework, gardening and DIY and whether or not you require adapted accommodation, aids and equipment.
If successful in your medical negligence claim you could receive compensation for:
- your injury, including pain, suffering and loss of amenity
- any loss of earnings arising as a result of the injury, including past loss of earnings and estimated future loss of earnings
- the costs of past and future care and assistance and for the time spent by friends and family providing care and assistance which you would not have required if it hadn’t been for the injury
- medical expenses, including the cost of painkillers and prescriptions and the cost of surgery, physiotherapy or other treatment required as a result of the injury
- the cost of rehabilitation if required
- the cost of equipment such as orthotics, prosthetics, walking sticks, crutches and wheelchairs
- the costs of adaptations to your house and sometimes the purchase or building of suitable accommodation
- travelling expenses
What happens in a medical negligence investigation and claim?
We will take a statement from you, before obtaining and considering copies of your hospital and GP medical records and any other relevant medical records. We will arrange for your copy records to be collated and indexed before we instruct independent medical experts to report on liability and causation. If the expert evidence is supportive on liability and causation, we will then need to investigate and obtain evidence to value the claim.
If the medical expert reports are supportive on liability and causation, we would then write a Letter of Claim to the opponent with a copy to the NHS Litigation Authority or doctor’s defence union. They would then have 4 months to respond indicating whether or not liability is admitted.
After that, unless the case settles at an early stage, we will issue court proceedings and the Defendant will either admit the entire claim or defend part of or all of the claim. The case will then proceed through litigation. The Court will set dates for important steps in the case, including exchange of witness statements, exchange of medical experts’ reports, meetings between experts and exchanges of schedules setting out each side’s valuation of the claim. Nowadays there are often joint settlement meetings between the parties if the case cannot be settled informally. If the case is not settled it can proceed to trial, but the majority of cases are settled before trial.
How long does it take?
Each case is different and on average it can take around 12 to 18 months to investigate the strength of a case, but some cases can take 2 years or more to investigate, particularly complex cases requiring several different medical expert opinions. Sometimes copies of medical records are supplied quickly but there can be lengthy delays in the supply of some medical records particularly if you have a large number of medical records to be obtained from various different sources.
We may have to wait a long time for independent medical experts to report and some good experts have lengthy waiting lists.
Once we have investigated the strength of the case we will send a Letter of Claim to the opponent, who must respond within 4 months indicating whether they admit or deny liability.
If the opponent does not admit liability it will be necessary to issue a claim at Court. The timescales vary but if a case is going to require a trial the trial will usually take place within approximately a year to fifteen months of the claim being issued at Court.
To you, as our Client, we know that a claim is only truly successful when we’ve been able to get your compensation to you and you can start getting your life back together. It is very difficult to be accurate about how long a successful claim will take all the way up until you receive your full compensation. However, in some cases, when we have investigated the claim and the Defendant accepts responsibility for your injury, we are able to arrange an ‘interim payment’ of your compensation from the Defendant. This means that the Defendant pays a proportion of your likely final damages to you straight away, so that you and your family have the financial support you need until the case is finalised and the balance of the compensation is paid. This is always a great help when you can’t work or when care arrangements for a loved one need to be put in place urgently. We are always conscious of this and will consider if an interim payment of damages is appropriate in all cases
What do we have to prove to win my clinical negligence claim?
Independent medical expert evidence is needed to establish whether or not there was negligence and whether the negligence was the probable cause of the relevant injuries.
To succeed in a medical negligence case, it is necessary to prove that the treatment provided fell below the standard of a reasonably competent practitioner in the relevant field and that the substandard care caused an injury and losses which you would not otherwise have suffered, or made a material contribution to your injury.
Do I have to attend a trial at court?
The majority of cases in which the medical expert evidence supports a claim are settled out of court, so that most claimants never actually have to attend a trial. However, a small proportion of cases do go to trial and it is generally impossible to tell at the outset whether your case is likely to go to trial. A case can be settled at any time up to and even during a trial.
If yours is one of the small minority of cases which does go to trial then you will usually have to attend court.
The Court must hold a hearing to approve any settlement or agreed compensation for an adult who is unable to manage his or her own affairs or any settlement on behalf of a child. The purpose of these hearings is for the judge to consider if the settlement is fair and reasonable, before approving the settlement for the child or assisted Claimant. These hearings are not adversarial and do not involve cross examination of witnesses.
Will you travel to visit me at home or in hospital?
Yes, the department is based at our Huddersfield office but we are happy to see you at one of our other offices, or to visit you at home or in hospital if you are unable to attend at one of our offices.
Can they stop treating me because I am investigating a claim?
Yes, but this only happens rarely and in specific circumstances. When things have gone wrong with your treatment, many doctors will be happy to continue treating you. After all, mistakes are unintended and the vast majority of doctors aim to provide a decent level of treatment and want the best for their patients. However, if either you or your doctor feels that your relationship is irretrievably damaged, or you have lost trust in your doctor, either or both of you may consider that it would be appropriate for you to be referred to someone else and your doctor may recommend this. It might also be difficult to talk about points which are relevant to your case with the original doctor who is the Defendant or with a doctor from the Defendant Trust and they could be very cautious about what they write in your medical records, in case information is used in evidence against them.
Can I request a referral to a different hospital or surgery?
Yes. If you feel uncomfortable being treated by the doctor, team, or health care practitioner whose actions may have caused you an injury because you are investigating a claim, or because you have lost trust in that person or team, you are entitled to ask to be treated by someone else. If you were injured as a result of hospital treatment, you could ask to consult someone else at the hospital or you could request a referral to a similar specialist at a different hospital. If the case relates to the management by your GP, you could ask to register at a different surgery or to consult a different GP at the same surgery.
Will my doctor or nurse be struck off or punished for the medical error?
Not usually. In certain cases, a doctor, nurse or midwife may be struck off his or her professional register as a result of the case in question. A doctor was struck off further to a medical negligence claim after our Michael Cotter discovered that some of the relevant medical records had been dishonestly rewritten by the doctor, in order to evade liability for the claim. However, this is not usually part of a medical negligence case and it is not something that we get involved in as a matter of routine, as a claim for damages is intended to compensate you rather than to punish a member of the medical profession.
You can if you wish ask the General Medical Council (the GMC) or the Council for Midwives and Nurses (NMC) to investigate your complaint and they will make a decision regarding whether they wish to proceed to investigate the conduct of a particular practitioner. If the GMC or NMC finds that there has been professional misconduct they could strike the practitioner off of the relevant register, or impose another penalty. However, it does not follow that there will be a misconduct hearing in every case simply because a medical error has taken place. If you wish to report a doctor to the GMC, please see the GMC’s website: www.gmc-uk.org . The website for the NMC is: www.nmc.org.uk .
What is ‘no win, no fee’?
A ‘no win, no fee’ agreement, or Conditional Fee Agreement, is an agreement between us stating that, if you are unsuccessful in your claim, as long as you have kept to your responsibilities under the agreement, you do not pay us anything. We will have arranged an insurance policy at the beginning of the claim to protect you if you are found liable to pay any of the Defendant’s costs and to provide protection in relation to the cost of disbursements.
If you are successful then the majority of our costs will be paid by the Defendant. There may be a deduction from your compensation to cover the insurance premium and the success fee (which reflects the risk that we take when we take these matters on).
Your Solicitor will discuss and explain funding alternatives to you, including this type of funding, in more detail at the first meeting and all of this will be thoroughly explained and any questions will be answered before you sign a conditional fee agreement.