Category Archives: Views

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