Category Archives: Views

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