Category Archives: Views

Surveillance and Fundamental Dishonesty

Defendants in clinical negligence cases often challenge the claims we put forward on behalf of our clients, and in particular, assert that the injury has had a more minimal effect than we have alleged.  They can do this on the basis of their medical evidence (from the expert doctors they have instructed to assist them with the case) but also by surveillance.

A Defendant is entitled to investigate whether what a Claimant says about of the effect of their injuries upon their lifestyle is genuine.  Whilst they are entitled to do this in any case, in practice, they mainly tend to do it only when a person is severely disabled and their day to day activities are limited as a result.

In our experience there are 2 main ways in which they do this:

  1. Looking at a person’s social media presence, i.e. Facebook, Instagram, Twitter etc. A Defendant can ask a Judge to order a Claimant to provide copies of their posts, photographs etc. for them to consider.
  1. If we claim that a person is housebound, has problems walking, getting in and out of cars or needs help with shopping or doing things outside of the home, the Defendant may check to see if this is genuine. This could involve filming that person, for example, driving, attending the supermarket or at public events to see if the injuries and limitations are consistent what we have claimed.

The benefit to a Defendant if they can show a Claimant is not as badly affected as alleged is twofold.  Firstly, it will help them prove that the level of damages the Claimant is due is less.  Secondly, and more importantly, the Court has power to dismiss the entirety of a claim if it is satisfied on the balance of probabilities that the Claimant has been “fundamentally dishonest” in relation to any aspect of the claim.

This is nothing to worry about and certainly not a reason to avoid looking into bringing a medical negligence claim if you think you may have received substandard treatment.  The vast majority of Claimants are honest and accurately report their symptoms and the effect any injury has had on them.  However, it is something to bear in mind if you are bringing a claim, especially if you are thinking of trying things you previously thought impossible.  In this situation, we would ask that you keep us informed so we can make sure that the Defendant and our experts are aware of it. If you find these changes last for just a short period of time, it will prevent a situation where the Defendant believes they have evidence that you are more able than we have previously stated.

If you would like to discuss this further or think you may have a claim for medical negligence and would like some advice from one of our solicitors, please contact us on 01642 231110.

Kathryn Watson – April 2018

Not all claims are against GPs or Hospitals

When people think about “Medical Negligence” their minds typically jump to claims against the NHS or GP surgeries. While these types of claim are the most common they are not the only claims that we handle and we often bring claims against less obvious defendants. I’ve set out a few lesser known potential defendants below:

Care Homes/Nursing Homes – Other than hospitals and GPs practices claims against care homes or nursing homes are among the most common that we handle. When you or a loved one becomes a resident of a home like this the company and its staff have a duty to provide an adequate standard of care. If they fail to provide this standard of care, for example by failing to do enough to prevent the person from falling or developing pressure sores, a claim for negligence may arise.

The Ambulance Service – The ambulance service is often the first point of contact with the medical profession someone experiences after an accident or an emergency and the care they provide (or fail to provide) can have very serious consequences. Whilst the paramedics who were on the scene may have acted correctly, it can sometimes be the initial assessment by the ambulance dispatcher that was incorrect, resulting in a delay in attending which might have caused the injury to be worse or in some cases death.

Pharmacies – It is very important that the medication prescribed by doctors is provided correctly. A pharmacy providing incorrect medication, or an incorrect dose of the medication, can result in a claim for negligence if this failure causes you an injury.

Community Nursing – The care provided by community nurses in peoples own homes is another common source of medical negligence claims. Most typically these claims arise from a failure of the nurses to take action when wounds or pressure injuries develop.

Private Surgeons – People are often under the assumption that just because they paid privately for their treatment they are unable to bring a legal claim if this isn’t of an acceptable standard. This is completely incorrect and a private surgeon owes you the same duty to take reasonable care when treating you that an NHS doctor does.

While the above examples describe some of the more common claims we handle every medical negligence claim is different. If you believe that you may have been the victim of medical negligence, whoever provided this care, we can assist by providing free advice as to whether or not you might have a claim, don’t hesitate to call us on 01642 231110.

Dan Richardson – February 2018

Bereavement Damages – a long overdue change on its way?

There is a fixed amount of money that is awarded to certain close relatives when someone dies in an accident.  It applies to medical claims and other accidents when someone else is proved to be at fault.  The sum is fixed by Parliament and is currently £12,980 and is called a ‘bereavement award’.  It is Parliament’s financial assessment of the amount of money needed to compensate you for your grief and suffering from losing a loved one.

However, injustices have arisen (not only because the amount is small) but also because the people who are entitled to claim is limited by Parliament in the Fatal Accidents Act 1976.  Surviving spouses (or civil partners) and the parents of children under 18 years of age are the only two groups who are eligible.  If you are cohabitees or a parent of a child over the age of 18 you are not entitled.  As about 17% of couples now living together are either not married or in a civil partnership it affects a lot of people.

Some of this injustice may be remedied shortly.  A recent Court of Appeal case (Smith –v- Lancashire Teaching Hospitals) has declared that to exclude cohabitees is not compatible with the Human Rights Act 1998.  What does this mean?  Sadly nothing for Miss Smith but there is now a hope that Parliament will look again at its definition of who can claim and extend it to cohabitees.  However, with all things Brexit preoccupying the Government I am not hopeful this will be sorted any time soon.

Hilton Armstrong – December 2017

Fixing the amount of Costs in Clinical Negligence Claims

Our solicitors and indeed the profession have awaited with some dread Lord Justice Jackson’s review of costs in civil matters which includes clinical negligence claims. It was suggested that there should be a fixed amount of costs allowed for claims up to a certain value, whether it is a contract dispute, a neighbour dispute or a complex clinical negligence claim. This was worrying because this took no account of the very individual nature of clinical negligence claims, where each claim, like each person is very different. Two people could, for example, have suffered the same mistake or be misdiagnosed with the same condition but the reasons for this, the investigation and the effect on them can be completely different needing an individual approach to each claim. It was always our view that a “one size fits all” system would only lead to people being denied the thorough investigation they deserve.

The costs paid by the defendant that the media and the NHS repeatedly complain are too high and who portray solicitors as “bleeding the NHS dry” are not a “windfall” for solicitors as has been claimed. They include the costs of multiple medical experts whose involvement can in large value cases cost tens of thousands of pounds and the fees for specialist barristers to advise on the case and represent the Claimant at Court. Cases proceeding to Trial involve solicitors’ costs for work over generally 3-6 years, some even longer. Limiting costs available to pursue a claim can, in our opinion, only result eventually in being unable to properly investigate a claim. Being denied the opportunity to fully investigate and subsequently being denied justice could result in the loss of the much needed compensation that allows those injured to live with the effects of the negligence and improve their life.

Lord Justice Jackson’s review, published in July, has recommended many changes and has thankfully rejected a “one size fits all” system. However the most significant proposal for the work we do is to suggest limiting the level of costs for Clinical Negligence work in cases with a value of up to £25,000. At each stage in the case there will be a fixed amount of costs available. This is not ideal and will include cases which are very complex and emotional to investigate but lower in value such as errors causing the deaths of children. It remains to be seen how or when this process will be finalised and there is a lot more work to be done before then but it is clear there will be implementation in the future of a fixed amount of costs to some clinical negligence cases.

Here at Armstrong Foulkes our solicitors are always available to discuss a potential case and advise you of your options irrespective of the value or level of injury. Please do not hesitate to contact us for a free no-obligation chat on 01642 231110.

Joanne Davies – September 2017

Will the General Election result affect your claim?

The answer to this question is “No”.  You may think this is an irrelevant question and therefore pointless answer, but there is more to it than first seems.  I shall explain.

Before the General Election the Government had made it clear that it was their intention to reduce the bill to the NHS arising out of clinical negligence claims.  Not only did they want to reduce the legal fees but they hoped this would also cause a reduction in the number of valid claims.  They were seeking to reduce an injured person’s access to justice by making it harder to pursue a claim.

This isn’t fair.  So we like many other firms and charities campaigned against it.  I wrote to three of our local MP’s setting out in some detail the effect of these changes on their constituents, inviting them to share their own views and asking which way they intended to vote.  Only one replied.  I wrote to the two major parties candidates in my own constituency, neither replied.  It’s pretty clear to me that this issue is not all that important to them.  It’s not a vote winner, which means the party in charge will usually get its own way.

The significance of the hung Parliament we now have is that changing the current system of compensating victims of medical negligence and making it harder to bring a claim may not be so high up on their list of priorities – they have bigger fish to fry.

This is good news for all those unfortunate enough to have been injured.

Hilton Armstrong – July 2017

How to complain about the medical treatment you have received

Many people contact us because they would like to complain about the medical treatment they have received but are unsure how to go about it.  Alternatively, they may not wish to complain but would like more information or answers to questions they have not had the opportunity of asking or have done so and have not received adequate answers.

You are entitled to complain/ask questions about the treatment you have received.  We advise you send a letter to the Chief Executive of the Trust if the treatment was provided by a hospital or district nurse and to the Practice Manager of your GP practice if it was provided by a GP or practice nurse.  Complaints should normally be made within 12 months of an incident or of the matter coming to your attention.  However, sometimes people understandably don’t feel up to making a complaint so soon after, particularly following a bereavement or serious injury.  If more than 12 months have passed since the subject of your complaint, it may be useful to explain in your letter why you are only able to write the letter now and this may encourage the provider of the treatment to investigate your complaint in any event.

The letter of complaint should set out briefly the background to your complaint and then we recommend you make a list of numbered questions that you would like answering.  This will then enable the investigator of your complaint to respond to each question in turn.  Upon receipt of the complaint, the provider should acknowledge and initiate an investigation.  Once their investigation is complete, which may take some time if it is a complex matter, they will either provide you with a written response or invite you to attend a meeting to discuss the matter further.  Whether you choose to attend the meeting or not is entirely up to you and what you feel comfortable with.  If you do go to a meeting, we advise you to ask for minutes or a recording of the meeting.

Once you have the provider’s response to your complaint, you are entitled to ask further questions if you think the response fails to address all the issues.  If you are not happy with the way the complaint has been dealt with, you can take your complaint to the Parliamentary and Health Service Ombudsman, which is independent of the NHS.  They will then look into the matter further for you.

Solicitors are unable to get involved with the complaints process as it is separate from a legal claim.  However, if you suspect you or a family member has been injured as a result of medical negligence and you have made a complaint and would like to know what to do next, or if you would like advice before making a complaint, please do not hesitate to contact us on 01642 231110 and one of our solicitors will be happy to talk to you and provide advice on how best to proceed.

Kathryn Watson – May 2017

Increase in the value of claims with future losses – An explanation for our clients

There are several elements to calculating the right level of compensation. It is usually made up of awards for:

  • Pain, suffering and loss of amenity

Your injuries and their effect on you

  • Financial expenses incurred.

Anything you have bought or paid for as a direct result of the negligence, for example prescription or medication charges, travel expenses and loss of earnings.

  • Future anticipated losses.

These are any losses you will likely suffer in future as a result of the negligence such as ongoing medication charges, regular private treatment, annual fees for something you require or ongoing loss of earnings. They can also be one off future losses or losses recurring every 10 years in the future.

To calculate the future losses there are set formulas that all lawyers use. For future losses you take the likely future expense and multiply it by a figure known as the “multiplier”.  All lawyers use actuarial tables known as the “Ogden Tables” to work out the “multiplier” as you cannot simply use the amount of years the loss is expected. There are many different types of tables and of future loss but if we look below in general terms at a recurring loss for a set period you will see how the situation has changed in March in favour of the person claiming compensation.

When compensation is paid at trial you would receive “in your hand” the future financial cost of the expense, therefore if you were to suffer, for example, an annual medication cost of £100 for the next 34 years the calculation should not be £100 x 34 years = £3,400. The reason for this is that if you were to get £3,400 now you could in theory invest this and end up with more than the loss would have been at the end of the 34 years. The purpose of compensation is to put you back to where you would have been had it not been for the accident/incident/negligence therefore having more than your loss at the end of 34 years would be considered a windfall and against this principle. For this reason the figure of 34 is discounted to allow for the fact you could invest it and it could grow.

As mentioned above these discounted figures are set out in the Ogden Tables used by solicitors to calculate the position correctly. From 2001 until 19th March 2017 all “years of loss”,for example, were discounted by 2.5% to provide the correct “multiplier” or figure to times the ongoing or future loss by.

From 20th March 2017 the figure to use to discount the future loss has changed. Now instead of discounting by 2.5% in the above 34 year example it will be discounted by -0.75%. This is an incredible change and significantly increases the total figure. 34 years annual loss in this situation which at 2.5% discount was 23.01 years totalled £2,301. This becomes 38.75 years at -0.75% discount totalling £3,875. This is more than the anticipated loss at £100 per year for 34 years. Any claim with future losses has now increased in value. In some claims the increase is dramatic by hundreds of thousands of pounds.

Understandably this has not been popular with Defendants and we all accept that this is likely to alter again. The likelihood is that it will change to something which will still potentially mean a discount to the years claimed but one more likely to be balanced by investing the money and returning you to the position you would have been in, had the negligence never occurred.

This is a complicated issue but our solicitors always aim to explain in detail why and how they are claiming losses for you. If you think you may have a claim for compensation and in particular for future loss do not hesitate to call us and speak to one of our specialist clinical negligence solicitors on a free, no obligation, basis.

Joanne Dennison – March 2017

Your rights to access medical records

As part of a clinical negligence claim we often obtain copies of medical records during our initial investigations. Many people, however, come to us for advice on obtaining their medical records independently and this article will provide some guidance as to how this can be done.

There are two acts under which medical records can be obtained, for living patients applications should be made under the Data Protection Act 1998 and if the patient has passed away then certain people can apply for their records under the Access to Health Records Act 1990.

Data Protection Act 1998

Under the Data Protection Act 1998 patients have the right to see or obtain copies of their own medical records. You are not required to provide a reason why you want copies of your medical records. Requests for records should be addressed to the records manager at the relevant GP surgery or hospital and make it clear that the request is under the Data Protection Act 1998.

Once the request is received the healthcare provider will contact you outlining their fees for providing copies of the records. They may not charge you any fee at all, but if they do the amount they are entitled to charge differs depending on how the records are held (electronically, on paper or a combination of the two) and when they were last added to but cannot exceed £50 and is often much less than this. Once they receive payment the healthcare provider has 40 days to provide you with copies of your records. If you don’t receive them within this time you should chase them and remind them this is a breach of their duty under the Data Protection Regulations 2000.

Access to Health Records Act 1990

The Access to Health Records Act 1990 allows certain people, typically family or Personal Representatives of the deceased’s estate or any other person who may have a claim arising from the death, to access the records of patients who have passed away. If it is hospital records that are required then the application process is similar to an application under the Data Protection Act, a request should be made in writing to the records manager at the hospital where the treatment was received, making it clear that the application is under the Access to Health Records Act 1990. You may be asked to provide proof of your identity and relationship with the deceased to ensure you are entitled to access the requested records.

When a patient dies their GP records are typically transferred to be stored centrally by an NHS body called Primary Care Support England, the GP surgery will be able to advise you whether this has happened.  The Primary Care Support England website (http://pcse.england.nhs.uk) provides a detailed application form needed to obtain a deceased patient’s GP records.

To simply view the records under the Access to Health Records Act a fee of £10 can be charged. If copies of the records are required then they are entitled to charge a further fee for photocopying and postage. Unlike a request under the Data Protection Act these charges are not subject to any upper limit.

If after you have obtained your records you have any questions or you would like advice on any possible claim please do not hesitate to contact us and one of our solicitors would be happy to provide you with advice and guide you through your options.

Dan Richardson – March 2017

Difficulties facing Claimants

Clinical negligence claims are receiving increasing attention by the government.  Claimants and their solicitors are being criticised for the perceived disproportionality between the amount of compensation the Claimant recovers and the legal costs which have to be spent in order to get that compensation.

In an attempt to keep Claimants’ costs to a minimum, in recent years many changes have been made to the way claims are funded and conducted.  These changes include:

  • Limiting the type of case for which Legal Aid is available
  • Making the Claimant pay some of the legal costs out of their compensation.
  • Setting budgets for how much each side is allowed to spend on investigating and running the
  • Setting a new test of proportionality so that a Judge can disallow or reduce costs even if they were reasonably and necessarily incurred.

The NHS Litigation Authority, who deals with all clinical negligence claims against NHS Trusts, has recently published their annual report for 2015/16.  Criticism for the legal costs of bringing such claims is a continuing theme throughout the report.  The Chief Executive states that “the increasing disproportion in claimant legal costs and examples of excessive costs being claimed are highlighted in last year’s annual report and that trend continues this year” and that this is “against a background of high claims volumes including high numbers of claims being brought where there was no negligence.”  This latter statement is misleading as figures in the report indicate that Claimants were successful in over 70% of the clinical negligence claims closed in the past year.  The report also confirms that the number of clinical negligence claims reported each year has been steadily falling since 2013/2014.

Despite all the criticism regarding the costs of bringing clinical negligence claims, little mention seems to have been made as to why the costs are increasing.  No mention is made of how regularly the NHS Litigation Authority denies liability at first but then goes on to settle the claim after much additional work has had to be done thereby increasing the costs.  All of this drags claims out and increases costs unnecessarily.

Due to the changes that have been made to the way these claims are to be pursued, the further changes that are proposed (including introducing fixed fees for claims with a value up to £250,000) and the difficulties Claimants are faced with in bringing their claims, it is important to instruct a solicitor who is experienced in clinical negligence claims.  Here at Armstrong Foulkes, we have specialised in clinical negligence for 24 years.  Clinical negligence claims take up 100% of our workload.  It is all we do here.  If you think you may have suffered as a result of medical or dental negligence and would like some advice, please contact us on 01642 231110 and one of our solicitors will be happy to talk to you about your potential claim.

Kathryn Watson – September 2016

Pressure sores are avoidable

Generally, yes.  Put simply the Department of Health says if you cannot answer yes to the question “Was everything done in order to prevent the sore?” then you cannot say that the sore was unavoidable.

Pressures sores and pressure ulcers can develop in the home or in hospital and will generally always be tended to by nursing staff including district nurses.  The best treatment is a combination of pressure relief by way of positioning and pressure relieving aids and use of the correct type of dressings.  Only in rare cases will surgeons get involved.

Pressure sores can be painful and debilitating.  In some cases they can be fatal particularly when they become infected and they can lead to overwhelming sepsis. 

The level of treatment, care and support needed as a result of pressure sore creates a huge social burden.  Patients can be rendered disabled meaning once the medics and nursing staff have retreated, someone needs to step in and take over and provide care and assistance where it wasn’t needed before.  Treating avoidable pressure sores is not simply a drain on the NHS but on society as a whole.  Yet, at Armstrong Foulkes we routinely investigate a number of cases each year concerning the development and management of pressures sores to patients buttocks, sacral areas and heels.  In some of these cases the patient is critically unwell.  They have perhaps had major surgery rendering them unable to move and reposition themselves and they need extensive care and for the reasons set out above this must include care of their pressure areas.

In some cases the patient is in hospital for something quite minor but without the correct mattress or cushion they develop a pressure sore that will take months of treatment and care to heal but took only a few hours to develop.

Here are some examples of the cases we have dealt with in recent years concerning pressure sores which should have been avoided:

Mr B – A 66 year old man had surgery to treat an aortic aneurysm and developed a sacral pressure sore due to the failure to provide him with an adequate mattress and cushion and a failure to reposition him sufficiently.  He remained at risk of future breakdowns and even 5 years later could not sit in a chair without pressure relief.  He recovered £55,000 in compensation.

Mrs B – A 77 year old woman admitted to hospital with a suspected urinary tract infection and other pre-existing medical conditions which put her at increased risk of pressure sores developed sores to both her heels when the nursing staff failed to adequately assess her risk of developing sores.  Without this assessment they then failed to put in place any care plan to prevent the development of sores.  Mrs B required years of treatment to her heels and her mobility became very restricted.  She recovered £34,000 in compensation.

Mr K – A 40 year old man was admitted to hospital for treatment of his testicular cancer.  He suffered a significant sacral sore.  The scar tissue itself became stuck right down to the bone.  The sore healed within 4 months but was painful on a daily basis.  He was the main carer for his disabled daughter and he was unable to provide the same level of care and assistance she needed as a result of a failure to provide a pressure relieving mattress.  Mr K recovered £80,000 in compensation.

Mr L – Mr L suffered from Multiple Sclerosis and had limited mobility.  He developed pressure sores to his heels when he was admitted to hospital overnight and was not nursed on a pressure relieving mattress.  He had continuous pain and his mobility was further limited.  In the first instance he recovered £47,500 in compensation.  This became a shocking case when only a couple of years later we were contacted by Mr L’s widow.  Her husband had passed away from an unrelated illness but in the final few months of his life he was tormented by the unnecessary development of pressure sores again because of a short admission at the same hospital during which he was not provided with adequate pressure relieving aids and care.  Mr L’s widow secured a further payment on behalf of her late husband’s estate.

Pressure sores are NOT minor or “non-serious injuries”.  Even once they have healed they can leave you with scars, pain and sensitivity and major restrictions on your daily life.  On top of that there is usually a risk of future breakdown.  At Armstrong Foulkes we would advise anyone who has suffered a pressure injury while in hospital or has had a pressure sore at home which has been looked after by community nurses to look into this further.  We are happy to discuss any such cases.  Please call us and speak to one of our solicitors on 01642 231110.  Alternatively please get in touch with us via our Contact page.

Ashleigh Holt – August 2016

What losses and expenses can we recover in your claim?

A question we are often asked is “what financial losses can I recover?” In English law compensation is broadly separated into General Damages (those relating to the pain, suffering and impact of the injury itself) and Special Damages (specific, identifiable expenses incurred as a result of the injury or which will be incurred in the future).

Putting a value on general damages is not an easy task; many factors need to be taken into account such as the duration of the injury, the degree of pain that you suffered and what impact this has had on your life. To guide our assessment of general damages we look to previous cases and consider the amounts awarded. As no two medical negligence cases are alike it is often not possible to find directly comparable cases and our assessment needs to take into account the unique facts of every specific case, identifying the key differences between cases and applying our experience to understand how this affects the value of the claim.

The other element to make up the compensation you are awarded is special damage, i.e. those financial losses and expenses you have incurred as a result of your injury. These could, amongst many other things, be a loss of earnings resulting from time taken off work, travelling expenses for hospital appointments which would not otherwise have been required, prescription charges and the cost of any equipment bought to assist you in adapting to your new situation. A claim can also be made for the time spend caring for you, even if this care was provided by a friend or family member who was not paid. Another common special damage we recover is the costs of future treatment, which can have a huge impact in terms of your recovery.

The special damages we seek to recover can vary greatly from case to case and depend on the specific needs and losses of the client. In the past, for example, we have been successful in recovering the costs of pain management courses to ensure our clients have the best possible support during their recovery. In cases where a client’s fertility has been affected we have also been able to recover the costs associated with IVF and surrogacy.

It is important to keep a record of any costs incurred (and ideally keep any receipts) as special damages can dramatically affect the potential value of a claim.

The years of specialist experience at Armstrong Foulkes ensure that we can always seek to recover the maximum compensation for you, supporting you as you recover from you injuries and ensuring you are not left out of pocket by the negligence of medical professionals.

Dan Richardson – July 2016

Claimants Travel Expenses

Can a Claimant recover his expenses for attending a medical expert or visiting his lawyer?

If the other side ask you to attend for a medical examination by their own doctor then you will be able to recover your travel and other expenses (lost earnings, food etc.) from them. They should pay these within 28 days of the examination.

  • If you have to see a doctor for a report that your own Solicitor needs then the position is more complicated. It is usual for your Solicitor to reimburse your expenses in attending if you can give him the receipts. Sometimes if the expenses are high, for example you have to travel to London then he may give you some money beforehand if you cannot afford to pay yourself. The difficulty arises when you try to claim these expenses from the other side if you win your case.   The Defendants regularly object to paying them.
  • The way forward in this scenario is for your Solicitor to claim these expenses in your case against the Defendant. However, this means that there has to be a deduction from your compensation to reimburse the Solicitor for what he has paid to you. If that didn’t happen you would be paid twice, once by the Solicitor and once by the other side in your compensation.
  • You cannot claim your expenses in going to see your Solicitor. This is because those costs are considered to be the normal costs of being a litigant and therefore not recoverable.

Hilton Armstrong – June 2016

Hips and Knees

Did you know:

  • 40% of all medical negligence claims against the NHS are orthopaedic claims.
  • Fingers / wrists / arms / shoulders / ankles / knees / hips etc.
  • 17% of all orthopaedic claims relate to Hip and Knee Replacements
  • 10% = Hip Replacements

Ø  7% = Knee Replacements

** McWilliams et al. JBJS 2013

The impact orthopaedic claims have on those unfortunate enough to suffer them affects every aspect of their daily lives. Our client’s complain of a severe limit on their mobility (even just getting around the home), their inability to work and they often require assistance from carers or loved one’s just to be able to cope.

A number of issues can arise in Hip and Knee Replacements:

  • Nerve Injury
  • Infection
  • Vascular Injury
  • Dislocation
  • VTE – Venous Thromboembolism / blood clots
  • Leg Length discrepancy
  • Malalignment

It is important to remember that not every complication will give rise to a claim in negligence. Every surgical procedure carries “acceptable complications” which should be discussed with you by the Surgeon at the time of providing your Consent to the procedure.

However, not all complications are “acceptable” and unfortunately sometimes the surgery has been performed to an unacceptable standard and this causes an injury.

We here at Armstrong Foulkes have extensive experience of orthopaedic claims and we can help you find out if you have received substandard care and if you have grounds to bring a claim.

If you think you have suffered such an injury please do not hesitate to contact us and one of our solicitors would be happy to discuss it with you.

Andrew Walker – November 2015

Should you be afraid to ask questions about your treatment?

We are often contacted by people whose main concern is that they don’t understand what has happened or why they were treated in a particular way but they don’t necessarily consider the doctor/consultant/nurse/dentist has been negligent. Many people leave hospital or other healthcare providers feeling like they don’t fully understand what occurred or why. Healthcare professionals and the healthcare system can seem intimidating or daunting particularly if you don’t feel physically or emotionally well, as a result many people never ask for further information, others feel troubled by their concerns long after treatment has finished. If you don’t fully understand or you can’t quite stop thinking about an aspect of your treatment or care should you be afraid to ask a question? The firm answer is “NO”, if you are unsure about any of your treatment, diagnosis given or advice provided you should always feel safe and justified  to ask “what, why, when” or “can you explain that to me again”. This applies at an appointment, as an inpatient or even after you are home, as often it’s only then you have time to reflect on what occurred. Doctors and Hospitals generally welcome this as often just asking simple questions can lead to misunderstandings being quickly resolved, reassurance given and avoid unnecessary worry or stress and long investigations weeks or months later.

If you do have a question or you don’t understand what happened, what can you do? Well there are several options. You can approach the doctor or consultant directly either at your next appointment or before then via their secretary. If you don’t feel comfortable doing that you can make use of other services designed to assist you. If it relates to hospital assessment/treatment all NHS Trusts have a PALS Department (Patient Advice and Liaison Department) whose purpose is to deal with questions or concerns from patients or their families either during or after their care. Their contact details can be found on the particular NHS Trust’s website, but equally you can call the hospital and just ask for the department or their details. In cases where you have specific questions we always recommend they are asked in written format and a written reply is requested, this is simply to avoid confusion and clients have often expressed to us it helped in months or in some cases years to come that they had that to refer back to or to discuss at the time with friends or family. Obviously some questions are so simple and straightforward or perhaps so urgent that speaking to someone in the PALS team is the more suitable option. If the question relates to a Dentist, GP or other healthcare provider then the Surgery’s Practice Manager can usually assist as the first point of call, again a written approach may be more beneficial if the questions are complex or you prefer this method of communication. There is no right or wrong way to do this, it’s entirely what you feel most comfortable with.

Many people feel wary of approaching the PALS department or the Surgery as they don’t want to be seen as a complainer or a troublemaker, but these services are not only designed for you to complain about treatment but also to assist you if you have questions or need information. Many concerns can be resolved and worry set aside by simply asking them why they did something or what that means for your health. Asking for information should not been seen as troublemaking and in fact a large percentage of enquiries made praise certain aspects of care given and should not be seen as complaining. That said if you do feel that you wish to make a complaint about treatment or advice you should also feel free to use these same services to ask for your complaint to be investigated as this is an important aspect of their work and also entirely justified.

Should you have any questions or want any advice on how to go about asking questions regarding your treatment or whether you should in fact make a complaint please do not hesitate to call us for a free no obligation chat on 01642 231110.

Joanne Dennison – September 2015

Astronomical Increase in Court Fees!

The recent news that the court fee to start a claim worth £200,000 or more is set to leap from £1,515 to £10,000 has left most of us feeling like we’ve taken a sucker punch to the solar plexus.  This is of the course the most extravagant rise but all court fees are expected to be levied with a jaw gaping hike!  Much like the solar plexus, legal costs in personal injury and clinical negligence claims is a weak spot that the Ministry of Justice has hit squarely yet again.  With the decimation of public funding and the new proportionality test that sees costs considered disproportionate (to the value of the claim) and therefore reduced or disallowed altogether even if they were reasonably and necessarily incurred(!!), the doorway to the injured claimant’s access to justice appears to be no longer wide open but just passable.

So, where does this leave the Claimant?  Take the example of Mrs A and Mrs Z – both are aged 60.  Both suffer an injury during surgery as a result of negligence. Both are left with pain and symptoms rendering them unable to continue working.  Mrs A works as a Shop Assistant and Mrs Z works as a Barrister.  They have almost identical injuries but their claims for loss of earnings are substantially different.  However, in this age, costs incurred in Mrs Z’s case will by definition be challenged to a lesser degree than those same costs incurred in the case for Mrs A because her claim has a greater value in monetary terms.  Adding an inflated court fee to the legal costs of pursing a claim for someone like Mrs A is likely to draw significant and merciless challenges on every step taken to secure the claimant the compensation owed to them under the principle that an injured party should be restored to the position they would be in “but for” the negligence.

In some cases the implications of paying large court fees and of legal costs being assessed as disproportionate may be sufficient for an injured party to struggle to find a solicitor to take on the case in the first instance or perhaps  to find an experienced solicitor who will act in their best interests.

Paying out a court fee of £10,000 in any case is ludicrous and is a huge burden to any law firm and we hope that this idea with be reviewed and departed from however whatever happens, here at Armstrong Foulkes we will always act in the best interests of every client and provide a proper service of standard to each client.

Ashleigh Holt – March 2015

Provisional Damages – How can you be compensated for a future risk of injury?

Sometimes the most serious result of clinical negligence is an increased risk of further injury occurring in the future. For example, a negligently performed operation which causes very little immediate injury may result instead in a risk of catastrophic future consequences. If these future effects are inevitable or “a probability” (more likely than not to happen) compensation can be recovered as if the future injury had already occurred, ensuring that if and when the unfortunate does occur there are already funds available to assist. When the future outcome of a medical mistake may occur and is simply “a possibility” (less than 50% likely) the situation is more complicated, but there are solutions.

There are generally two ways to address these “possible” future risks –

Full and Final Settlement

Firstly, a modest increase in compensation is often offered by the Defendant to “buy out” the future risk and encourage you to accept a single payment in “full and final settlement” of the claim. In this way the total compensation received at settlement is a little higher than it would otherwise be. The downside to this is that should the worst happen you can’t go back to court to seek further compensation in respect of your new injuries meaning that you may not have access to adequate funds to adapt to the new situation.

Defendants greatly prefer to settle claims this way as it allows them to simply write a cheque, close their file and move on knowing they will never have to revisit this case again. While the initially higher compensation is obviously attractive our advice is always that this will not protect you sufficiently and you should consider the alternative, “Provisional Damages”.

Provisional Damages

An alternate approach is that in addition to the injuries suffered that can be compensated at the time of settlement you also seek a specific type of compensation called “provisional damages”. If these are awarded then at the end of the claim you receive your compensation with no increase to “buy out” any less likely future risks. The possible risks to your health as a result of the negligence and the timeframe for the risks are usually recorded in an order by the Court at the time of settlement. Should any future injury occur which is specified in the order within the appropriate time frame you are free to return to court to request further compensation appropriate to the injury.

The final decision of how you want your claim dealt with always resides with you. As specialist medical negligence solicitors Armstrong Foulkes have the knowledge and experience to be able to advise you on the benefits and consequences of any course of action, allowing you to make a fully informed decision about what will best meet you current and future needs.

Daniel Richardson – February 2015

NHS reports an 18% increase in claims made

So why is there such an increase? It is probably a combination of three factors:

1.     Since the dismantling of the Legal Aid scheme and introduction of ‘no win no fee’ agreements more people can afford to employ a lawyer to investigate a medical mishap.

2.     There was a rush of claims just before April 2013 when a change to the rules meant that the NHS no longer had to pay a success fee if the claim was successful. If clients were signed up after then, the success fee came out of their compensation.

3.     There are many new entrants to the market (Solicitors with little experience of these claims) who are taking on cases and lodging claims that have not been properly investigated.

There was always going to be a blip for reasons ‘1’ and ‘2’ above. That will work its way through. However, the increase attributable to the new entrants is very unpredictable. They have entered the market because the Government has reduced their fee income from Road Traffic Accident work. They see medical claims as a way of replacing their lost income and keeping their paralegals employed.

We have been doing this type of work in the Teesside County Durham and North Yorkshire region for over 20 years and we have not seen the standard of medical practice drop dramatically over this period. Generally the level is good. Mistakes will always happen – it is human error, and no amount of form filling, privatisation or retraining will eradicate these lapses.

It’s the new entrants that everybody should be worried about:

  • The injured patient; because they have put their case in the hands of a non-specialist
  • The NHS; because they have to investigate claims that have not been properly risk assessed.
  • The specialist medical lawyers; because the new entrants are giving us a bad name.

Hilton Armstrong – January 2015

Don’t Lose Your Benefits

Did you know that if you are in receipt of means tested benefits and you receive an award for compensation then those benefits can be stopped?

To be eligible for certain means tested benefits the Department of Work & Pensions [DWP] will look at how much capital (e.g. savings) you have. A compensation payment will therefore affect your level of capital and if you have over £6,000 those benefits payments may be reduced. If you have over £16,000 those benefits will be stopped completely.

If you fail to tell the DWP about the compensation award then that is Benefit Fraud.

If you are injured, through no fault of your own, and receive compensation of say £20,000 then if you were in receipt of means tested benefits you would no longer be able to claim them. This does not sound fair does it?

Well, fortunately, there is a way to protect your means tested benefits entitlement. By setting up what is called a ‘Personal Injury Trust’. This separates your compensation award from your savings and it is therefore not included in calculating your means tested benefits entitlement. By setting up this Trust you can continue to receive the same means tested benefits that you were before.

So, make sure to tell us if you receive any benefits so that we can put you in touch with people who specialise in setting up Personal Injury Trusts.

Andrew Walker – November 2014

Compensation is not used to punish!

To many people compensation is almost a dirty word, conjuring up images (mostly thanks to our American friends) of multi-million pound settlements for seemingly minor injuries. Unfortunately this misconception can make people uncomfortable seeking the compensation they are entitled to. We often see clients who appear almost apologetic that they are seeking the compensation that they need. A better understanding of how compensation functions in English Law is often enough to dismiss these concerns.

In England you only receive compensation to ensure you are not left “out of pocket”, now or in the future, as a result of your injury. Its aim is to put the injured person in as close a position as possible to where they would have been had the damage not occurred. For example, if you are unable to work due to your injury and lose wages, compensation can be awarded to cover the amount that you would have received had you been working. You do not profit from being injured, the law simply ensures that you do not lose out because of it.

Compensation in English Law is fundamentally linked to actual loss. No money is awarded to punish the other side and any compensation awarded is solely to compensate the injured person, as far as money ever can, in proportion to their actual loss.

In many cases defendants will admit that they have made a mistake relatively early in the claim, but will fiercely contest the consequences that this mistake has on the patient, and so how much compensation is due. Due to legal system’s approach to compensation you can be certain that every penny an injured patient receives has been rigorously argued over, comprehensively justified and is linked to a real loss they either have suffered or will suffer in the future.

At Armstrong Foulkes we seek to ensure that no one should ever feel like they are doing something wrong by simply seeking the compensation they are entitled to after suffering due to the negligence of a medical service provider.

Dan Richardson – August 2014

“Compensating mistakes is not destroying the NHS!”

It was recently reported in the national press that the Chief Executive of the NHS Litigation Authority has labelled costs of pursuing legal claims for clinical negligence as “taking money away from NHS care”.  In her view “that is just wrong”.  In fairness, she was referring to some very specific cases but it is still this very narrow interpretation of merely one of the demands on NHS funding which can be enough to deter patients from pursuing a claim for injuries they have suffered through no fault of their own.

It is not uncommon to speak to a potential new client and hear them say (in hushed tones) something alone the lines of “I’ve never done this before” or “I don’t really agree with making claims”.  They can almost sound ashamed.

What concerns us as specialist medical claims lawyers is the implied suggestion that victims of medical negligence are the ones robbing the NHS and society of better treatment and care.  There are many myths to dispel and we have simply picked out a few that should be taken into account when considering the other side of the argument:

  1. The suggestion that small claims often have no merit or are trivial is incorrect.  In around 99% of cases an independent medical expert is needed to say that the standard of treatment  was so poor and so bad that no competent medical professional would have acted in that way.  It is not a low threshold.  This is a very high standard of proof and the burden is always on the claimant to undertake these investigations and prove their case.  If there was no case to pursue, we would not do so and when there is no case the Defendants do not pay out compensation or costs.
  2. The NHS is still not throwing its hands in the air often enough despite the recommendations for there to be a ‘duty of candour’ when mistakes and errors are made that fall outside of the realm of accepted practice.  Quite often the costs we incur in a claim are a reflection of how the NHS responds to the allegations put to them.  We look forward to an attitude of openness and transparency becoming the norm but we are simply not seeing this filter through yet.
  3. There is absolutely no evidence that if the cost of claims decreased that the money saved would be put back into treatment and care.  The NHS is one of the UK’s largest employers and it has business interests and competitors like many other organisations.
  4. Finally, avoidable mistakes are still being made and in our practice we see daily reminders that the real cost is to the patients and their families.

At Armstrong Foulkes one of our lawyers will always be happy to speak to you about any injury which results from medical treatment and discuss with you the possibility of pursing a claim.  Please feel free to call us on 01642 231110, e-mail us by completing the form on our Contacts page or drop into our office.

Ashleigh Holt – June 2014

Duty of Candour – What Does it Even Mean?

Following on from the Mid Staffordshire Public Inquiry, as a result of an unusually high death rate at that NHS trust, recommendations were made to impose a “duty of candour” on all providers of health and social care in England. The exact wording is currently under consultation; but the question is what does this even mean? Here at Armstrong Foulkes, we try to cut through the legal jargon and explain things in a language that everybody understands.

In simple terms, “a duty of candour” will impose a duty on medical professionals/bodies to tell patients, or their families, if they have suffered significant harm whilst in their care. It may be surprising to learn that no such requirement already exists, but there is currently no statutory (legal) duty on hospitals to tell you what has happened, which has led to allegations they have been ‘covering up’ mistakes.

It will apply to any health or social care provider in England including GPs and private providers.

It is our view that this duty of candour is long overdue and you should be told about what went on during your hospital stay if something goes wrong. A failure to do so leaves the most vulnerable people searching for answers.

For many clients their primary concern when they first come to see us is finding out what happened to them or their loved ones whilst in hospital. A more open and forthcoming approach from the hospitals is welcome and will go some way to address these concerns.

Sometimes openness, and even an apology, is enough to satisfy a client. However, sometimes serious injuries and/or long-lasting consequences arise out of these incidents and the solicitors here at Armstrong Foulkes can advise you whether or not the circumstances also give rise to a legal claim in which you can recover compensation. Compensation is for the injuries and financial losses suffered, and also any future needs, and is not something that will be provided for by this duty of candour. Therefore even if you receive information from the hospital/healthcare provider, we always recommend that you speak to us about whether you have grounds for such a claim.

We will help you in finding out the answers to the questions you most need answering, and we promise to do so in a jargon-free, clear way!

Andrew Walker – May 2014

 

Legal Drama Vs Reality!

Television has always been full of police dramas which inevitably involve criminal trials, but recently there has been a welcome upturn in dramas involving the legal system, most of which are enjoyed by our staff. I confess that I am of the generation that was drawn to a career in law after watching the glamorous world of “LA Law” where the lawyers of McKenzie, Brackman, Chaney and Kuzak always won and partied as hard as they worked. I found after 11 years in practice that this is not an accurate picture of the job of a solicitor, I can’t remember the last party I was at on a “work night”!

Whilst I cannot speak for the other areas of law, I am constantly amazed by the speed with which a Clinical Negligence case on TV gets from the initial incident to trial within a matter of months. The truth is whilst this makes for good TV viewing; it is not representative of what truly occurs in the UK. Investigations into clinical negligence claims take a long time and those proceeding to trial are likely to be several years and not several months from incident. As shown in earlier articles on our website, investigations into these cases involve obtaining medical records and usually the opinion of more than one medical expert. There are many steps sometimes taking a year or more before you issue court proceedings and then usually 9-12 months of steps after that before you reach a trial. The “small screen” can never reflect these time frames for obvious reasons but we ensure that our solicitors will always advise clients on likely timescales and keep them up to date with what we are doing, how long this is likely to take and when they can next expect to hear from us.

So, do I regret that my career in law is not that of a TV Lawyer? Not a bit! The opportunity to be of assistance to someone who really has suffered as a result of a medical mistake is always rewarding. Claims against the NHS receive bad press in the UK and many clients come to us feeling apologetic for pursuing the claim. However, compensation is never awarded without good cause and without proving that the treatment was below that of a reasonably competent medical professional. Compensation is sometimes viewed by those who have not suffered clinical negligence as a cash windfall, but in practice the suffering of the patient after a mistake is often long lasting, sometimes permanent. In these cases a complete adjustment to their lives, careers, families and homes has to be put in place and professional care may be required for life.

The truth is compensation awards in this country are not high, as they may appear on TV, the loss of one eye for example attracts only between £44,000-£53,000 in damages. The rest of the compensation that person may receive is made of financial expenses that have had and will incur so that they can function as they did pre-incident. For example, a child suffering brain damage at birth may be awarded millions, but that does not make them a millionaire. Their lives are completely altered from what they would have been as are their family’s lives. Almost every penny of their “millions” is accounted for to ensure they have the professional care, medical treatment, specialist accommodation and equipment they need for the rest of their life, but even then they will never  live the life they would have had if the mistake had not occurred.

Clinical negligence lawyers, like myself and my colleagues, actually have overwhelming respect and admiration for the work of the doctors and nurses of the NHS and the unenviable decisions they must make on a daily basis. Clinical negligence is simply a medical mistake but unlike the mistakes most of us make, the consequences of medical mistakes are far reaching, sometimes fatal. Should people who suffer as a result simply put up with this or is it fair that they or their families are compensated to return them to how they were pre-incident or to achieve a better quality of life. It is a shame that this is not everybody’s perception of clinical negligence compensation, as I find it an area of law that is professionally fulfilling.

Joanne Dennison

The effect of “plebgate” on medical negligence claims

I’m sure many of you have heard of “plebgate” – the altercation Andrew Mitchell, Conservative MP and Chief Whip at the time, had with the police during which the police officers in question alleged that he called them “plebs”.  Some of you may also be aware that Mr Mitchell is suing News Group Newspapers Limited alleging defamation for their reporting of this incident on the basis that it was untrue.  What fewer people may realise is the effect this case has had on the legal profession and the running of civil claims, including medical negligence claims.

In a civil claim, once court proceedings have been issued, both parties are required to file a costs budget of incurred and projected costs.  In Mr Mitchell’s case, his solicitors filed their costs budget 6 days late.  The court determined that as a result of it being filed late, Mr Mitchell is unable to recover his costs if he wins the case, other than the court fees he has incurred.  This decision was upheld by the Court of Appeal.

This is a dramatic shift in the position of the courts.  In the past, the courts tended to adopt a fairly lenient approach if things were filed late and if the breach had not prejudiced the other side, you were usually given a chance to correct it with little penalty.  This is no longer the case.  Unless the breach or mistake is trivial, there must be good reason for it and if not, it appears the courts are taking a very strict approach with serious penalties being imposed.

As solicitors, it is ultimately our responsibility to ensure we comply with court orders.  However, we need your help as clients with the running of the claim and meeting any deadlines set by the court.  We aim to make your role as a client as easy as possible keeping you updated with the claim and upcoming steps so that you are fully aware of the need for your assistance and the time limits involved in your claim. We therefore ask our clients to respond when asked for information and to sign and return documents as soon as possible.  We are proud to be asked to bring claims on your behalf, but we never forget that these are your claims and that we work in partnership with you. With your co-operation we will always strive to get the best result possible for you.

Kathryn Watson – March 2014

First Impressions

When I first started here at Armstrong Foulkes I was, perhaps fortunately, not fully aware of the complexities of a Clinical Negligence claim. As a result of my studies and personal experience I was familiar with more common types of negligence, road traffic accidents or trips and falls for example, and I of course knew that negligence could occur in a clinical context but I didn’t truly appreciate quite how different and complicated a Clinical Negligence claim could be.

As Armstrong Foulkes exclusively handle Medical Claims I have had the perfect environment in which to learn. The wealth of experience in the firm means that, although every case is different, few cases are entirely unique. More often than not someone has handled a similar case and can provide the benefit of their advice and guidance on what has occurred and how to proceed.

One aspect of Clinical Negligence that I find especially rewarding is the opportunity to meet and interact with clients face to face. Whilst some firms deal with their clients almost entirely using telephone, Email or post there really is no substitute for meeting people in person. Through developing a good relationship with clients I have found that it is much easier to appreciate and address their needs and problems. Medical claims usually involve complicated and detailed medical reports and medical conditions, Armstrong Foulkes insist that wherever possible they see clients personally to go through them and ensure they are understood and any questions are answered.   I have also learnt that meeting people gives me a fantastic opportunity to put their mind at ease if they have any concerns and ensure that they understand not only what will be happening with their claim, but also why it’s going to happen.

I have quickly come to realise that Clinical Negligence is a fantastic area of law in which to work. It has the perfect combination of complexity and client focus which results in enormous job satisfaction. I certainly feel privileged to have been given the opportunity to work for a firm dealing exclusively in this vital and complex area of law.

Dan Richardson – February 2014

Why choose a specialist?

If you are looking for a Solicitor on Teesside to handle your medical claim, then you will probably do the following:

i.            Search the internet.

ii.            See an advert in your local paper or on TV.

iii.            Look through the Yellow Pages.

iv.            Listen to a friend, relation or colleague.

v.            Contact your family Solicitor.

Nowadays, lots of Solicitors are doing Clinical Negligence work but that does not mean they are specialists.  They are turning their hand to it because they are short of work.  Their adverts are very good and they will promise you the world: e.g. “we expect to settle your claim within 6 to 12 months” or “we have successfully recovered compensation for thousands of injured people” and so on.  This is all rubbish.

So, why should you go to a specialist like us?  There is only one reason:

  • Would you be happy if a Neurosurgeon was going to remove your appendix, or if an Orthopaedic Surgeon operated on your brain?  Both are very competent in their own field but you would be a fool to trust them if they strayed out of their area of expertise – so why do it with your medical claim?

We only deal with medical claims for injured people on Teesside and in the North East.  We have years of experience which enable us to get you the best result for you, both in terms of compensation and answers.

We have national recognition and are listed in Chambers and The Legal 500:

http://www.chambersandpartners.com/16346/140/Editorial/1/1

http://www.legal500.com/c/north/insurance/clinical-negligence-claimant

Ring us today and we will tell you if you have a claim worth pursuing.  You will speak to an experienced Solicitor who will give you straightforward answers.

Hilton Armstrong

What Can I Claim?

Following on from Kathryn’s article entitled “What is needed to prove medical negligence” (October 2013) I wanted to briefly explain what happens next in your claim.

If we can say that there is a claim for negligence we will then look to determine what we call the Quantum of your claim, or how much your claim is worth.

When assessing how much compensation you can claim we look at the following:

  • Pain, Suffering and Loss of Amenity – which is the injury itself and the impact on your daily living; this is all confirmed by one of our medical experts.  This is a subjective award based on guidelines and previous awards in similar cases.
  • Special Damages – these are any other ‘financial losses’ that we can put a figure on.  Such losses can include, but are not limited to:

Loss of earnings/pension

Care and assistance – whether professional or from family members

Accommodation

Aids and Equipment

Treatment Costs

Travel Expenses

Dependency Claims, i.e. loss of childcare, DIY, housework

Funeral Expenses

Bereavement Award – a set sum of compensation for the loss of a husband or wife or a child under the age of 18

We will look to recover everything we can for you, subject to any deductions for State Benefits received.

We recommend that all clients keep a record of any losses that they suffer throughout the case so that we have as much information as possible when it comes to working out what compensation you are due.

Andrew Walker – November 2013

What is needed to prove medical negligence?

What is needed to prove medical negligence?

In order to prove medical negligence and get compensation, you need to prove that the doctor, hospital or other medical professional provided you with substandard treatment (i.e. breached their duty of care to you) which caused you an injury. You do not need to prove that this definitely happened, just that it is more likely than not that it did. In order to succeed in any medical negligence claim, there are therefore 2 hurdles we have to get over:

1.   Breach of duty

We will need to prove that the doctor (or dentist, nurse etc.) breached their duty of care to you by providing treatment which was not up to an acceptable standard.

The legal test states that:

“A doctor is not guilty of negligence if he has acted in accordance with a practice as accepted as proper by a responsible body of medical men skilled in that particular art.”

What this means is that we need to prove that the treatment provided to you was substandard and that no reasonable doctor would have acted in that way.

2.   Causation

It is not enough to just prove that the doctor’s treatment was substandard.  We also need to prove that you were injured as a result of this treatment.  If you have not been injured as a result, the claim will fail and you will not get any compensation.

For example, if your doctor prescribes you incorrect and potentially dangerous medication, this is clearly a breach of his duty to you.  However, if you realise his mistake and do not take the medication, you have not been injured and there is no claim as there is no injury to compensate you for.

Causation can often be very difficult to prove.  We need to compare how you are after the substandard treatment with how you would have been if you had received the correct treatment.

In order to get over these hurdles and prove both breach of duty and causation, we need the evidence of medical experts e.g. orthopaedic surgeon, dentist.  Depending on the difficulty of your case, we may need to involve a number of different experts.  It is their evidence confirming whether a doctor acted negligently and whether it caused you an injury which will make or break the case.

Kathryn Watson – October 2013

“All Rise” – a poem by Mr D Pearson

We received the following poem from a client who we act for in a clinical negligence claim relating to the death of his wife. We recently represented him, with the assistance of a barrister, at the inquest into her death. About a year ago he wrote this poem to reflect his feelings about the upcoming inquest in particular the difficult questions that would be asked, the hope that the truth would be made clear and that nobody would forget that this was about his wife and not about avoiding blame. We are grateful to him for letting us share this with you all as it reflects a very personal view of how the whole Inquest process affected him and the frustration and anxiety felt by a spouse or family during this difficult process.

Joanne Dennison

ALL RISE

All rise.

Who told lies,

and swear.

Some can’t bear

however they try,

breakdown and cry,

all laid bare

or, hidden in their

false testimony.

 

All rise.

Is it too much to ask

to reveal and lift the mask,

with training and decency,

combined for leniency.

Who could stand this task

to be in the dark and bask

in their fight for clemency

forgetting who is in the cask.

 

All rise.

Now, it’s certified

a life now denied

a creed now broken

truly, outspoken.

How did it go then,

a well done deed.

That’s all we need.

All rise.

 

14 August 2012

Mr D Pearson

Legal Aid to be abolished….

A Bill is going through Parliament that will withdraw the availability of Legal Aid for victims of medical accidents.  It will also reduce the amount of compensation successful claimants receive.  The Government believes that these measures will save the tax payer money and curb unmeritorious claims.

In future legal aid will not be available.  Practically nowadays only children who have suffered a severe injury, such as oxygen starvation at birth, get legal aid.  These are complex  expensive cases which are usually strenuously defended.  If legal aid is removed, most of these cases will not be pursued – they are far too expensive for the solicitor to fund the investigation on a no win no fee basis.   

In future all successful claimants will have about 25% of their compensation deducted to pay legal costs.  Currently this burden is on the party that caused the damage i.e. the defendant.  It is proposed to transfer this burden to the victim.  General damages will increase by 10% to compensate this but however you add up the figures the injured party will still be worse off.

These reforms are not good news for people injured as a result of medical malpractice. 

 Hilton Armstrong:  September 2011