Tag Archives: compensation

The problems for and with Junior Doctors

The title “Junior doctor” can relate to someone just out of medical school or someone who is as much as 5 years out of medical school.

In many hospitals across the UK you will find very junior doctors covering hospitals, particularly at night, with very little support however the responsibility for clinical decisions will still always lie with senior medical staff.

Having such junior staff in very busy departments such as the Emergency Department (ED, formerly A&E) can present a problem for the hospital but also the patient.  This short article will deal with just a few of the issues arising from junior doctors.

  • Junior doctors can be overly cautious.  Just by the nature of the career they have chosen to follow, we know they are high achievers in life and have so far done very well.  They are terrified of making mistakes and this is likely to happen when they start treating real patients.  Much of the work in ED is making numerous decisions and not making the right one can be a terrifying prospect.
  • Junior doctors can be inclined to inherit another doctor’s thinking rather than apply their own judgement.  This can be a particular problem when they are involved in handovers and at the end of shifts.  This can also be a factor in cases involving recurrent attending patients if the junior doctor does not look beyond what his colleague wrote in the notes a week before and he/she fails to listen to the patient or carer.  This can lead to the correct diagnosis being missed.
  • Junior doctors are overworked particularly during night shifts when they are tired and more likely to make a mistake and there is less supervision.
  • Junior doctors by their nature are very inexperienced and this will be apparent in their judgement.  They will struggle with young children as patients.  Quite often this is because the junior doctors have never been around young babies or infants and in most cases will not have started families themselves.  They also struggle with neurological injuries and issues particularly involving the spinal cord or patients with multiple injuries.  All of this increases the risk of them forgetting/missing something.
  • Junior doctors can be pressured to make unsafe clinical decisions.  In many cases the junior doctor will ask for a speciality review (e.g. surgical review for a patient with suspected appendicitis) or ask for some complex imaging such as an MRI.  However in many cases the junior doctor is unable to assert themselves to get someone to see their patient or to get agreement for a scan to go ahead and they accept what in some cases turns out to be unsafe advice to discharge the patient.

The NHS is attempting to minimise mistakes and provide all staff with more support systems and standard operating systems.  For example, many hospitals/Trusts now have specialist teams set up to deal with patients suffering from life threatening and changing conditions such as strokes, sepsis or cardiac arrests.  They are trying to ensure that there is more senior review available and they continue to introduce safety netting policies to cover a range of situations however calamitous mistakes continue to be made and in some cases the mistake was avoidable.

If you are concerned about any treatment or care you have had which you believe has caused you to suffer an injury, please do not hesitate to contact us and speak to one of our specialist solicitors.

Ashleigh Holt – May 2018

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

Another excellent rating for the Firm – Band 1 in Chambers & Partners!

I am delighted to announce that following on from our Tier 1 rating in Legal 500 (see article 01/11/2017) we have been again awarded the highest rating (Band 1) for excellence in clinical negligence work in the Teesside area. This rating is given by a prestigious guide to UK Lawyers entitled “Chambers & Partners” where we are described as a “Specialist boutique with a superb reputation for handling complex clinical negligence claims”. These ratings are reviewed annually and based on interviews with our clients and barristers with whom we work and the feedback they give on our solicitors and the firm in general.

Our 3 partners were singled out for praise for their work, Hilton Armstrong is described as “very friendly, very approachable; he’s lovely to deal with”, Joanne Davies (neé Dennison) is “very reliable, very bright and always gives me the information I need” and Ashleigh Holt is praised for the way she handles a range of complex clinical negligence matters.

One client stated “They have made it very easy for me, and have taken a lot of stress away”. This alone makes us feel we are doing our job well as our priority is always our clients and ensuring that what can be a difficult experience is as stress free as possible. We are, however, equally proud when recognised for the hard work we do on our clients’ behalf and this ranking is a reflection of the dedication of the entire team from our admin staff to the Partners. If you would like any information on this please do not hesitate to contact us or read the review for yourself using the link below.

https://www.chambersandpartners.com/16346/140/editorial/1/1

Joanne Davies (neé Dennison) – March 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

Legal 500 Tier 1 ranking – We’ve done it again!!

Armstrong Foulkes has proudly retained its Tier 1 ranking in The Legal 500 2017 database of lawyers and solicitors in the UK.  No other firm specialising or working in clinical negligence in the Teesside area has been awarded this accolade and as specialists in this field we are elated that this has come just after celebrating the 25th anniversary of Armstrong Foulkes opening its doors in Middlesbrough.

After interviewing our clients and other legal professionals we work with Armstrong Foulkes LLP is described as having “an unrivalled and enviable reputation in the region of clinical negligence work.”  The three partners in the firm were acknowledged for their efforts in this field.  Joanne Davies is set apart with her “excellent understanding of medical issues and always gets outstanding results”.  Ashleigh Holt is described as “highly efficient” and Hilton Armstrong who leads the firm is “a clever, committed and passionate advocate who achieves excellent results in an unfussy manner”.

Joanne Davies said “We are proud and delighted that the firm has been recognised for the specialist service we provide in this type of claim and particularly pleased that the dedication of our solicitors on behalf of our clients has been both highlighted and praised.”

Ashleigh Holt – November 2017

Our 25th anniversary!

On 1 October 1992, Hilton Armstrong and Peter Foulkes set up Armstrong Foulkes, with their intention being to set up a firm of solicitors specialising in clinical negligence and personal injury.  At the time, there were no other firms in the area that specialised in clinical negligence and we were the first firm in Teesside to have a legal aid contract for clinical negligence and the only one to have such a contract for many years.

Peter retired on 1 October 2013 when Joanne Davies and Ashleigh Holt became partners and Armstrong Foulkes became Armstrong Foulkes LLP, a limited liability partnership.

Throughout the past 25 years, the firm has gone from strength to strength and is nationally recognised as being a leading clinical negligence firm.  We are described in Chambers and Partners, which ranks lawyers worldwide, as a “specialist boutique with a superb reputation for handling complex clinical negligence claims. Advises and represents clients on a wide range of matters, including child brain injury and surgical negligence cases, and also handles claims concerning delayed diagnoses.”  The top firms are ranked from Band 1 to 6 (with 1 being the highest ranking achievable) and we are pleased that we continue to hold a Band 1 ranking and have done for many years now.

The firm now comprises 5 fee earners – Hilton, Joanne and Ashleigh (the partners) and Kathryn and Dan (solicitors).  We also have 4 support staff – Liz (who has been with the firm since the outset), Caroline, Jan and Honor.

Hilton says specialising in clinical negligence suits his personality as it requires great attention to detail.  This is a trait of his that is recognised in Chambers and Partners as he is noted to be “technically very competent, very thorough and will go the extra distance to investigate a case to see if there is something in it.”  As well as ranking firms of solicitors, Chambers and Partners also ranks the top solicitors in the country and Hilton continues to hold a Band 1 ranking.  Ashleigh and Joanne are also recommended.

The partners have yet to decide how we are going to celebrate the 25 year milestone but we have been assured it will be something to look forward to!  In the meantime, in true Armstrong Foulkes style, we have celebrated with cake!

cake

If you would like to speak to one of our solicitors for advice about a potential clinical negligence claim, please telephone us on 01642 231110.

Kathryn Watson, October 2017

Surgery abandoned due to a lack of beds

Due to abdominal pain Mr M was scheduled to have his gall bladder removed at the James Cook University Hospital in early 2015. It was intended that this procedure would be “keyhole” surgery with the option to convert to open surgery should this become necessary. If the “keyhole” surgery was successful then Mr M would be treated as a day case and allowed home the same day, if an open procedure (traditional “non-keyhole” surgery) was required then he would need to be kept in hospital overnight and so would need an inpatient bed.

Mr M attended James Cook University hospital as arranged and was taken down for surgery shortly after. Before he was put under general anaesthetic there was some concern as there were no inpatient beds available, but Mr M was nevertheless put to sleep and his surgery was started. It quickly became apparent that Mr M would in fact require the open version of the surgery and so needed an inpatient bed. As no beds were available Mr M’s surgery had to be abandoned.

When Mr M came round after his surgery he was told what happened and sent home. Mr M suffered cuts and bruising where his surgery had been started and was in pain for almost 2 weeks, during which time he was unable to work.

A few weeks after the abandoned surgery Mr M returned to the James Cook University Hospital and his gall bladder was removed successfully by open surgery.

Although Mr M was always going to need the open version of the surgery we were able to argue that his initial surgery should not have been started when no inpatient beds were available. Although it was intended that the procedure would be tried as “keyhole” surgery the need to convert to open surgery was always a possibility. Due to the hospital’s failure to make sure a bed would be available if he needed it prior to the surgery Mr M received an unnecessary general anaesthetic and suffered two painful cuts.

After coming to see us we were quickly able to put the case to the hospital, who admitted they were at fault straight away. After a short negotiation Mr M agreed to settle the claim for £3,500, less than a year after we took the case on. Thanks to an early admission of liability (legal blame) by the hospital we were able to settle this claim quickly and ensured that Mr M received the compensation he was due as early as possible.

While not all cases will proceed as quickly as this Armstrong Foulkes’ years of specialist experience working exclusively in medical negligence ensures that we are always in a position to give you the best possible advice in relation to your claim.

Dan Richardson, October 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

Pressure sores whilst in intensive care

Mrs J was admitted to hospital in October 2012 with sepsis and multi organ failure and she was not expected to survive.  She required admission to the intensive care unit where she remained for 2 months, for much of which she was in a coma.  Fortunately, she pulled through but when she regained consciousness, she was told she was paraplegic as a result of her condition and had developed pressure sores to her sacrum, buttock and heel which took a long time to heal.

It was the evidence of nursing expert that the pressure sores developed because of the hospital’s failure to reposition her whilst she was so unwell.  The hospital claimed that she was too unwell to be moved and if they had tried to reposition her, she probably would have died.  However, our expert was of the opinion that if this was the case, she should have been nursed on a specialist bed and mattress which would have turned her and the pressure injuries would have been prevented.

The hospital defended this case throughout and only accepted our offer of settlement for a 5 figure sum a few weeks before Trial.  The claim was limited to damages for the pain and suffering Mrs J experienced as all of the expenses she had would have been incurred in any event as a result of her paraplegia and not because of any negligence on the part of the hospital.

Kathryn Watson, August 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

Wrongful removal of a testicle

Kevin was in his mid fifties, single, and had a small benign cyst on his left testicle.  He had put up with it for a number of years.  Eventually he was advised that he should have it (the cyst!) removed.  Tests had confirmed that there was no cancer.  He received assurances that this was all that was to happen.  He went to hospital for what he expected to be a normal procedure for removal of this benign cyst.

After the operation the Consultant was doing his ward round with the trainees.  He announced to his colleague and Kevin that everything had gone to plan but to be safe he had removed the testicle, not just the cyst.  At first Kevin thought he hadn’t heard him correctly.  To say Kevin was angry was an understatement – he was absolutely furious.  Loss of his testicle was something he had wanted to avoid, and assured would not happen.

He came to see us about a claim.  The claim was pursued on a ‘no win no fee’ basis.  Within 8 months and shortly after starting court proceedings we secured a settlement of £15,000 plus payment of legal costs.  In monetary terms this the going rate for a loss of a testicle case as there were no complications or future concerns.

Hilton Armstrong – June 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

The Misery of Pressure Sores

In 2014 Mr G suffered a serious stroke, leaving him effectively paralysed down his right hand side. He was initially treated on a specialist stroke ward before being discharged to a nursing home but a few weeks after his discharge Mr G developed an infection and required readmission to hospital.

On this occasion he was admitted to an elderly care ward, rather than the stroke ward he had been on previously and the nursing care he received left much to be desired. While previously Mr G had been regularly repositioned while on the stroke ward to prevent the development of pressure sores, on the elderly care ward he was left lying in one position for long periods of time.

This lack of care resulted in 2 pressure sores developing on Mr G’s heels.  Once they have been allowed to develop pressure sores can take a very long time to heal and they can be extremely painful.  Sadly Mr G passed away a few months later.

Mr G’s family asked us if anything could be done about the treatment he had received. After investigating his treatment, we wrote to the hospital and put our allegations to them that it was substandard for to have failed to put adequate measures in place, such as a pressure relieving mattress or a system of positional changes, to prevent the development of Mr G’s pressure sores.

In their response the hospital admitted that they had failed to provide Mr G with an adequate level of care and made an offer to settle the claim, which was accepted by Mr G’s family.

Pressure sores continue to be a significant problem.  They can delay someone’s recovery and prolong hospital stay.  The healing process can be lengthy and they have a huge social cost.  Even once healed, the after effects can be debilitating and in some cases pressure sores can prove fatal.

If you or anyone you know has suffered pressure damage as a result of poor nursing care please get in touch with us to see how we can help you.

Dan Richardson – October 2016

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

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

Care Home Neglect

Mr G suffered with Alzheimer’s disease. Although his family were initially able to manage him at home, in the middle of 2013 they made a difficult decision to move him into a care home on the basis that the Managers of the home were able to assure his family that as specialists in dementia care the home would be able to cope with his needs including occasionally challenging behaviour.

On admission Mr G was clean and well-presented but over the first few weeks and months he appeared progressively more and more dirty and dishevelled and his family began to have concerns regarding the care he was receiving, and particularly whether Mr G was being restrained and whether appropriate force was being used when this was necessary.

Despite previously having had little difficulty walking Mr G soon appeared to be struggling to walk. After speaking with the care home staff it became apparent that the care home’s chiropodist was refusing to treat him and the care home had failed to arrange an alternative. When the family took Mr G to see his old chiropodist it was noted that he was wearing socks 4 sizes too small, and they must not have been removed for some time as his skin appeared to have begun to grow through them.

In late 2013 Mr G’s family arranged for him to move to a different care home. By this time he was also doubly incontinent and had sores on his buttocks.  Thankfully the new placement provided the care and support that Mr G  needed and he went on to make a good recovery to the relief of his family.

We brought a claim against the operator of Mr G’s initial care home for failing to adequately care for Mr G. The care home quickly admitted that it had not been a suitable placement for Mr G in the first place, that the staff were not adequately trained and that the level of care provided  had been substandard. After negotiations Mr G’s claim was settled for £5,500, £2,000 of which was paid to his family to be used to meet his immediate needs. The remaining £2,500 was paid into Court to be used for Mr G’s benefit in the future.

Dan Richardson – June 2016

Easter Themed Fundraising for the Middlesbrough MS Therapy Centre

Each year at Armstrong Foulkes we choose a local charity to support from nominations made by our clients.  For the past year, we have been supporting the Middlesbrough Multiple Sclerosis Therapy Centre.  For further information about the services they provide, please see their website at www.middlesbroughmstherapy.org

As we have now been supporting this charity for almost a year, the time has come for us to choose a new local charity to support but we wanted to give one final fundraising push in order to raise as much money for the users of the Middlesbrough MS Therapy Centre.  Our Easter related fundraising activities included a “Name The Bunny” competition to win a Hotel Chocolat Easter gift bag, a tombola and a cake and sweet stall.  People were very enthusiastic with their involvement and very generous with their donations (although one did want to check before buying a chocolate cornflake cake that we had used Kellogg’s cornflakes!).  In total from this event alone  we raised over £230.

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The Middlesbrough MS Therapy Centre will shortly let us know how much we have raised in total over the past year so watch this space.  For the next 12 months, we will be supporting Teesside & District Society for the Blind.  This charity was nominated by one of our clients who lost her sight in 2011 as a result of medical negligence.  She attends the centre 3 times a week and it has been a huge support to her over the recent years.  If you would like more information on this charity, please visit their website at www.teessideblind.co.uk

Kathryn Watson – April 2016

 

Shortlisted for Northern Law Awards!

“Celebrating the great wealth of legal talent and success within the region, the Northern Law Awards is the law event for all those practising and working in the legal industry in the North of England” http://www.lawawards.co.uk/event/

We were delighted to be shortlisted in two categories; Small Firm of the Year and Personal Injury/Clinical Negligence Department of the Year. This is the first year this has happened. The competition is fierce with the shortlists containing all the top players.

We gave it our best shot in the presentations to the Judges and await the results…

Hilton Armstrong – June 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

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