Tag Archives: Lexcel Accreditation

Hospital tells unsuspecting parents we may have caused brain damage to your baby during birth!

Since 1 April 2017 all NHS Trusts have been required to report to NHS Resolution, the body which has responsibility for managing clinical negligence claims against Trusts, of any incidents of babies born at term (from 37 weeks) with a potentially severe brain injury diagnosed in the first 7 days of life following labour.  These reports have to be made within 30 days under what is known as the Early Notification Scheme.

This relates to any baby who falls into the following categories:

  1. Was diagnosed with grade III hypoxic ischaemic encephalopathy (HIE) or
  2. Was therapeutically cooled (active cooling only) or
  3. Had decreased central tone AND was comatose AND had seizures of any kind

It is up to the clinical teams to advise the Trust’s legal department within 14 days of any such cases and then for the legal department to file the report.

NHS Resolution reported on their findings of the first year of the Scheme and published them in September 2019.  This confirmed that over 800 cases were reported of which 746 of which were eligible.  This represented 0.12% of all births.  In February 2020, Armstrong Foulkes LLP were told by a representative for NHS Resolution that there had been 50 admissions of liability to date.  The report concluded that most of the injuries to these babies were caused by problems with fetal monitoring.

What has become apparent is that in many cases, families do not know that their case has been reported or that the treatment they received is being investigated despite each Trust being required to comply with the duty of candour and keep families updated and offer apologies.  In fact, less than half of the 746 cases were reported to the families at the same time as they were to ENS.  Armstrong Foulkes is aware of instances of families only learning of the Early Notification Scheme some two years after the birth of their child.  This is particularly worrying and it is concerning to us that families are not being invited to be part of the investigation process.

The initial risk assessment on whether there is likely to be a finding of negligent care is done by the Trust.  If the Trust assesses a case as ‘likely’ to have involved negligent treatment then NHS Resolution will pass the matter directly to Solicitors who work for the NHS to begin a liability investigation.  Only 9% of cases were reported under ENS as likely in the first year.

For those cases assessed as ‘unlikely’ to have involved negligence or where it is ‘possible’ that there was negligent treatment, then NHS Resolution will do a review.  If a case is re-categorised as ‘likely’ or ‘possible’ it will go to NHS solicitors.  45% of cases were re-categorised in the first year!

Once a decision is made whether to admit liability or not then the decision is communicated to the family by the Trust.  Under the Scheme, families should be advised to get independent advice and should be signposted to Action against Medical Accidents, known as AvMA which is the UK charity for patient safety and justice.  In February 2020 however, a spokesperson for AvMA said that they were not aware that AvMA had been contacted by anyone who had been signposted to them under the scheme.

The aim of the scheme is to identify cases involving negligent care as early as possible and provide answers and support, including financial support to families earlier as cases involving significant brain injuries at birth do take a notoriously long time to investigate and conclude.  However, it is imperative that families are a) involved and b) have access to independent legal advice and representation to ensure that the scheme is transparent and fit for purpose.  This remains to be seen.

As a specialist clinical negligence firm, our concerns are that this scheme does not go far enough and is not being adequately publicised.  Also, we are concerned that families are made aware that they have the option of seeking legal advice irrespective of the scheme and regardless of what the scheme concludes.

You do not need to wait to be contacted by the Trust or someone on their behalf.  If you are concerned about treatment that you or your child received at the time of their birth or any time then you are still entitled to take matters into your own hands and get independent advice from specialist solicitors.  We are here to help.

Ashleigh Holt – May 2020

Delay in diagnosis of Lung Cancer – Judge in High Court Trial found in Claimant’s favour

Whilst many clinical negligence claims are defended, very few go all the way to trial for a Judge to determine the outcome.   This is because a claim has to go through many stages before trial, all of which are aimed at narrowing the issues between the parties and encouraging settlement.

In February, one of our cases went to trial at the Royal Courts of Justice in London.  The case concerned a delay in diagnosis of lung cancer.  K had attended hospital in May 2016 with shortness of breath.  A chest x-ray was performed which showed a lesion in the lung and advised further investigation.  Unfortunately this report was not acted upon and K was sent home.

In November 2016, he returned to hospital, again due to shortness of breath, and a further chest x-ray was performed which showed the lesion had increased significantly in size since the x-ray in May.  Further investigations were undertaken and K was diagnosed with lung cancer.  Unfortunately, he died in February 2017 shortly after his first cycle of chemotherapy.

The hospital admitted straight away they should have acted upon the x-ray report of May 2016 and this would have resulted in K’s cancer being diagnosed 6 months earlier.  The dispute arose out of the difference earlier diagnosis would have made; our expert oncologist was of the view K would have survived 8 years with earlier diagnosis, the Defendant was of the view he would have survived an additional 2 years.   This made a significant difference to the amount of compensation due, much of which comprised damages for financial dependency for K’s widow, T.

Despite every effort to settle the claim before trial, this was not possible and a 3 day trial in the High Court took place in February.  Our expert was compelling on the stand and the Judge found his evidence more persuasive than the Defendant’s expert which meant T was successful in proving her claim as alleged.  Although it would have been far better for T to have the claim settled earlier and to have avoided the ordeal of attending trial, as the Judge awarded T more compensation than she had offered to settle the claim ahead of trial, she was also awarded a 10% increase in her compensation to penalise the Defendant for not accepting her earlier offer.  A 6 figure settlement will not ease T’s pain of losing her husband but it will now give her financial security for the future.

Anything can happen at trial as it really is the unknown.  We are reliant on one Judge agreeing with our view of the case over the Defendant’s.  However, as these cases rely so heavily on the experts and their evidence, we make sure we instruct the best experts with the best reputations and scrutinise their evidence throughout the claim.  Whilst there is no guarantee we will win should a case go to trial, and in the vast majority of cases they settle beforehand, we do all we can to ensure we stand the best chance possible of succeeding with the claim.

If you or a family member would like to speak to a solicitor for some free, no obligation advice, please contact us on 01642 231110.

Kathryn Watson – April 2020

Coronavirus [COVID 19] & Appointments

We recognise that many of our clients instruct us and use our services when they are recovering from illness or injury or are perhaps living with compromised health and immune system. Although we wish to reassure all of our clients of the hygiene and health in our firm as the news of the spread of coronavirus [COVID-19] continues we are aware that clients vulnerable to infections and with weakened immune systems may be nervous of attending public places, including our office. We strive to put our clients’ needs first and should you feel this applies to you please call and speak to your solicitor about this and wherever possible we will try to conduct appointments by telephone if you require this. There will be some appointments that necessitate some clients to attend in person, but again we can look to make arrangements that will reassure you of your health and safety. Please don’t worry about approaching us about this or simply fail to attend a planned appointment, if you are at all concerned call us and together we will find a solution that suits everyone.

Joanne Davies – March 2020

“Flesh-eating disease” once again caused by failings in treatment

JS, a 70 year old lady, was admitted to hospital in the summer of 2016 with shingles.  She was suspected to also have a bacterial infection and was prescribed antibiotics.  Unfortunately, these were stopped when she was discharged 2 days later.

She was very unwell following her discharge and her GP arranged for her to be readmitted to hospital a week later.  She was once again diagnosed with a bacterial infection and prescribed antibiotics.  However, as the infection had been allowed to progress, her condition deteriorated but the hospital failed to address this.  In fact, on one day she was not reviewed at all despite her family raising concerns about her deterioration and the smell emanating from the wound on her hip.  They were simply reassured.

2 days later JS was seen by a Consultant who diagnosed necrotising fasciitis, more commonly known as the flesh-eating disease.  JS was taken by ambulance to a nearby hospital where she underwent surgery to remove the necrotic tissue.  Her family were warned by the surgeons that they had had to remove so much dead tissue, they likened the injury to that of a shark bite.  She required further surgery to apply a skin graft and was only fit for discharge nearly 3 months after her admission to hospital.

JS had to endure a horrific injury for 15 months until she sadly died unrelated to this incident.

Solicitors for the hospital admitted very quickly that antibiotic therapy should have continued after her discharge following her first admission.  It was our case, supported by expert evidence in microbiology and infectious diseases, that had the antibiotics continued, the infection would have fully resolved and the subsequent deterioration in her condition, readmission to hospital and need for surgery would have been avoided. However, this was denied by the hospital although they did admit her condition would not have been so severe but for their negligence.

The case was settled before court proceedings were issued.  Although the hospital did not formally admit the flesh eating disease was caused by their lack of treatment, the settlement reflected this.

If you are concerned you or a family member may have received negligent treatment and would like some free, no obligation advice, please contact us on 01642 231110 to speak to one of our solicitors.

Kathryn Watson – January 2020

Patients owed a duty of care by non-medical Emergency Department staff

The Supreme Court in Darnley v Croydon Health Services NHS Trust has unanimously decided that patients attending an Emergency Department are owed a duty of care not just by medical staff but also administrative staff such as receptionists.

Briefly, in May 2010, Mr Darnley was assaulted and struck on the head.  He complained of a worsening headache to his friend who took him to the Emergency Department of the Mayday Hospital in Croydon where he was booked in at 8:26pm.  He was told by the receptionist that he would have to wait between 4 and 5 hours to be seen.  19 minutes later at 8:45pm, feeling worse and wanting to go home to bed, Mr Darnley left the Emergency Department without informing anyone.  At home, he collapsed and an ambulance brought him back to hospital at 10:38pm.  He underwent emergency surgery but has been left with permanent brain damage.

The claim arose out of the information given by the receptionist as it was alleged the advice he would have to wait between 4 and 5 hours was inaccurate and misleading as he should have been told he would be seen by a triage nurse within 30 minutes.  At first instance, the Judge accepted the following:

  • Mr Darnley would have remained at the hospital had been told that he would be seen within 30 minutes of arrival.
  • Following triage, he would have either been admitted or told to wait and if he was told to wait, he would have waited.
  • If he had waited, his collapse would have happened in a hospital setting and he would have had earlier surgery and a near full recovery.
  • Mr Darnley’s decision to leave was based partly on the inaccurate that he was given by the receptionist about waiting times.
  • It was reasonably foreseeable that a person told he would have to wait for 4 to 5 hours might leave without treatment and then might go on to suffer physical harm as a result.

The claim however failed as the Judge held that there was no duty of care owed by the receptionist to patients attending the Emergency Department.  This was upheld by the Court of Appeal.

However, the Supreme Court has taken a different view and has held that the question is not whether a receptionist owes a duty of care to a patient, it is the hospital that owes the duty of care and this duty is well established.  As soon as a patient arrives at the Emergency Department and is booked in, the hospital owes that patient a duty of care which includes a duty to ensure a patient is not provided with inaccurate and misleading information.  As it is the hospital that owes the duty of care, there is no distinction between advice given by clinical and administrative staff.

Although this case relates to the advice given by a receptionist at an Emergency Department, the same principle can apply to advice given by clerical staff in any healthcare setting such as at GP surgeries or transport services.  It is important to remember that whilst a number of claims for injuries are the result of treatment provided by doctors, dentists and nurses, this is not always the case.

Kathryn Watson, December 2019

Small change in the discount rate still favours the Claimant

The discount rate is a percentage that is applied in claims where an injured person receives compensation now but this is to cover losses that they are expected to incur the future.  There is accelerated receipt of the money and the court therefore assumes that the injured person will invest their compensation and earn interest on it.

Between 2001 and 2017 the discount rate was set at 2.5%.  This was very favourable to the Defendants and it meant that if a Claimant was claiming 20 years’ worth of lost earnings the Defendants would only need to pay out just over 15 years’ worth as it was assumed the Claimant would be able to cover the missing years with the interest they had earned.

For many years, Claimant’s solicitors and organisations representing injured people said this was not good enough and that Claimants were being short changed.  They could not cover the loss with low risk investments as had previously been anticipated.

The Government, by way of the Lord Chancellor, did not look at this again until 2017 when the discount rate fell to -0.75%.

This caused a tidal wave of responses as insurance companies and the NHS lobbied for the discount rate to be reviewed again immediately as it would cost them millions in additional damages despite the savings they had previously and unjustly been making.  It was a very good time to settle claims for the Claimant as instead of recovering 20 years’ worth of lost earnings they were suddenly recovering nearly 22 years’ worth and the greater the period of loss, the greater the additional recovery for the Claimant.

In just over 2 years the Lord Chancellor announced the result of a review of the discount rate which was to be applied from 5 August 2019.  The new rate of -0.25% has increased but only marginally so, much to the chagrin of Defendants and their representatives who had expected a result much closer to the previous 2.5% rate.

While this is good news for the Claimant, it should be noted that the Government are clearly now going to review the discount rate more regularly and given the length of time it takes to settle the high value multi track cases where discount rates are applicable, there is no certainty that a case you take on today will reap the benefits of such a low discount rate by the time compensation is awarded in 4 years’ time!

Ashleigh Holt – September 2019

The First 100 Years Project – a History of Women in Law

I recently had the pleasure of hearing about this project in a talk to a packed conference from an inspiring lady Dana Denis-Smith, creator of the project. She explained that the hope is this endeavour will record in both writing and a video library the experiences of women in the legal profession since they were allowed to join in 1919 and help to demonstrate the progress made by women in legal careers over the last 100 years.

I am ashamed to admit that despite being a female solicitor I had little knowledge of the journey taken by and the hardships endured by my predecessors whose actions have allowed me to practice law today. I was fascinated to hear the stories of these women whose determination, perseverance and courage paved the way for all future women wanting to enter a career in law.

100 years ago the Sex Disqualification (Removal) Act 1919 was passed, without which women would never have even been able to  be accepted into this and many other professions previously considered only suitable for men. However, even before the 1919 Act there were pioneers fighting for the right to join this males only profession. Janet Wood in 1878 became the first female to complete a law degree despite the fact she was not allowed to be officially granted the degree she had passed with first class honours! Later came Eliza Orme who in 1879 was refused permission to sit the Law Society exams to become a solicitor. Despite this she persevered in pursuit of this career and in 1888 became the first woman to actually earn and receive the law degree she had studied for at University College London, although she could not then practice law. Finally in 2020 Madge Easton Anderson had the privilege of becoming the first female solicitor admitted to the Law Society after the passing of the 1919 Act.

The Project has researched and recorded as many of the very inspiring women and trailblazers who irrevocably changed for the better women’s opportunities in this profession. In addition to this they have taken video diaries from many inspiring female legal professionals still alive, whose stories of their fight to be given equal rights and opportunities, even fairly recently, are recorded forever for future generations. I imagine it will be hard for the next generation of women to believe there was ever a time when they had no freedom to choose their profession and that is testament to the incredible women included within this project.

The Digital Museum and all other information about this remarkable “First 100 Years” project can be found on their website https://first100years.org.uk

Joanne Davies – August 2019

A head injury after fainting

Simon was in his mid 20’s when he dislocated his finger.  He went to the Accident and Emergency Department of his local hospital.  He was seen by a nurse who successfully put his finger back into joint by manipulating it.  However, whilst she was doing this Simon fainted and fell to the floor, hitting his head and knocking himself unconscious.

To avoid this sort of thing happening it is standard practice for patients to be seated whilst manipulations are taking place.  The nurse failed to follow this practice on this particular occasion.  The hospital therefore admitted fault quite quickly.  All that had to be decided was how much compensation should be awarded.

At first sight, it did not seem as if this would be much.  Simon was off work for about 3 months and then got back to his pub management job.  However, as with a number of head injuries, it took time before the full effects became apparent.  After about a year or so Simon thought his memory was deteriorating.  Before the fall he was able to recall everyone’s telephone number and deal with several tasks at the same time.  His inability to continue to do this led to frustration with his job and difficulties in his personal relationships.  As time went by these problems became greater and they resulted in him losing his job and his marriage breaking down.

The claim settled a month before the trial to decide the amount of compensation was due to take place, for £125,000.  Happily Simon has learned techniques to cope with his memory defects which have enabled him to be reunited with his wife and embark on a new career.

Hilton Armstrong – July 2019

Government now picking up the tab for GP errors

Historically, GPs and any staff in general practice, including nurses, needed to arrange their own personal indemnity cover with a medical defence organisation in order to indemnify them in claims against them for medical negligence.  This would be in a similar way to you or I arranging insurance cover against loss or damage caused by us or others to our cars or our homes.  However, the position for all claims arising from incidents that occurred on or after 1 April 2019 against anyone working in primary care NHS services is that they will now be handled by NHS Resolution under the Clinical Negligence Scheme for General Practice.  (CNSGP).

The main function of NHS Resolution, formerly known as NHS Litigation Authority is to manage claims made against the NHS  in England.  The main reason for the introduction of this latest scheme is to reduce the cost of indemnity cover for individual health care providers but what are the benefits and pitfalls for the Claimant.

NHS Resolution have been doing this type of work for many, many years so they are well versed in how to manage the claims and having one single point of contact for claimants will be helpful in those cases where the GP or staff member has moved on and the Claimant is having difficulty tracing them or confirming their medical defence organisation details and whether they indeed had indemnity cover.  It will also allow scope for other settlement options that weren’t open to GPs previously such as periodical payment orders i.e., where the injured party receives an annual sum for an element or elements of the claim rather than one large lump sum.  This is usually applicable in cases involving catastrophic injuries and this type of settlement can be very attractive to such injured claimants.

NHS Resolution is however not a perfect model.  We routinely see claims being defended, despite admissions of unacceptable treatment being previously made by way of complaints or the Trust’s own root cause analysis investigations.  The cases then have to be pursued and litigated increasing the costs in the claim and the amount of time it takes to reach a settlement.

At this early stage, it is too early to tell if this is a good move but what we can almost certainly guarantee is that we will hear about the increased costs to the tax payer of dealing with these claims.

Ashleigh Holt – July 2019

Bicep injury attracts compensation of over £60,000

In addition to his usual daily employment, Mr B worked as a bouncer a few evenings a week to supplement his income and support his large family.  It was on one of these evenings that he felt something snap in his left upper arm which immediately felt painful and weak.  The following day, his arm was still painful and a bruise had started to form just past his left elbow.  Within 48 hours there was heavy red bruising around the arm and his bicep muscle appeared to be moving under his arm.

Mr B attended his local Accident and Emergency Department and was seen by an Emergency Care Practitioner.  She examined his arm and diagnosed a partial rupture of his left bicep.  She discussed the diagnosis with a doctor and then discharged Mr B with advise to rest the arm.  Mr B accepted the advice but became concerned after a few months that his arm was just not improving so he consulted his GP who referred him to an Orthopaedic Surgeon.  He was eventually seen by a specialist 9 months after the original injury and was diagnosed with a complete rupture of his bicep however secondary reconstruction at this late stage carried a 40 – 50% risk of nerve injury resulting in further permanent disability seriously affecting the function of his arm.  Mr B was strongly advised against any surgical intervention and a subsequent ultrasound scan confirmed the diagnosis.

As a result of the continued weakness and discomfort in his arm, and the lack of treatment options, Mr B was unable to continue working as doorman and he continues to be at a disadvantage on the open labour market.

Initially Mr B made a complaint to the Trust about the standard of treatment he had received.  The Trust’s first response was to advise that they had referred him to physiotherapy and had therefore discharged their duty of care.  Mr B objected to this and following a meeting with the Trust, they conceded they could not confirm that a physiotherapy referral had been made.  Mr B sought our help at this point and we agreed to investigate his case and offered him a “no win, no fee” agreement.

With the assistance of independent expert witnesses in the fields of Nursing and Orthopaedic Surgery, we discovered that there is a duty on examining clinicians to confirm or refute if a patient has suffered a total rupture.  This would usually be by way of a scan or a referral to the fracture clinic so that the patient can be examined by an Orthopaedic Surgeon.  There is some urgency in getting the diagnosis in an injury like this as repairs are easiest and most successful if carried out within 3 weeks in which case the patient will usually recover 95% of their original strength.  A referral to physiotherapy would be inadequate when the nature of the injury has not been confirmed.

A formal Letter of Claim setting out our allegations was sent to the Trust and a full admission of breach of duty and causation was admitted within the 4 month pre action protocol period in which the Defendants have to respond.  An initial offer of settlement was made in the sum of £10,000 however this was rejected because of the loss of earnings he had suffered in being unable to continue his door work.

Negotiations commenced and just before court proceedings were to be started the Defendants made a reasonable offer in full and final settlement of the claim.

The injury Mr B suffered is considered relatively minor.  He had a good degree of function remaining in his arm.  He was able to continue in his main employment and while being a doorman was no longer suitable for him, he was able to undertake other types of evening jobs if he wanted to in order to minimise his loss.  Therefore the element of the compensation he received for the actual injury was assessed at around £12,500 meaning that he recovered over £50,000 in past and future loss of earnings.

It is not uncommon for injuries considered less serious than others to attract higher awards of compensation because of the impact the injury can have on other areas of a person’s life.  Someone can have limited pain but they may suffer other restrictions in their life that they can be compensated for.

If you have suffered a similar injury, it is worth taking the time to get some from a specialist solicitor before dismissing it as being “not worth it”.  Our solicitors are more than happy to discuss this with you.

Ashleigh Holt, June 2019

Success Rates when you sue the NHS

The latest NHS Annual Report provides some interesting facts that don’t always make it into the mainstream media.  For example:

  • The number of claims made in 2018 was just over 10,000, down from 12,000 in 2013.
  • Only 54% of claims made result in the payment of compensation.
  • 40% of successful claims are worth under £25,000.
  • 40% settle for between £25,000 and £100,000.
  • 20% settle for over £100,000.
  • Claimants legal costs are down 6%.

So, there is no increase in claims, half fail and of the rest, just under half go for under £25,000.  Enforcing your legal rights when something goes wrong is not bankrupting the NHS.  Don’t always believe this myth that we are in the midst of a ‘Compensation Culture’.

Hilton Armstrong, June 2019

Best Medical Claims Law Firm – Northern UK & Leading Specialist in Clinical Negligence Law 2019

I am delighted to announce that we have achieved another award recognising our achievements and specialism in Clinical Negligence in the North East of England. Armstrong Foulkes LLP were successful in being named the “Best Medical Claims Law Firm – Northern UK & Leading Specialist in Clinical Negligence Law 2019” in the inaugural SME Legal Awards. Confirmation of our award can be found at the SME News Website where the press release states

“The legal industry plays a significant role in the UK economy, not only in terms of employment numbers but their overall contribution to the national economy, exports and the UK’s trade. As such, SME News is proud to introduce the inaugural UK Legal Awards to its roster, with the intention to recognise and spotlight the very best that this innovative and competitive industry has to offer.

 As an independent awarding body, business size or reach are not the only deciding factors for our nominations. Rather we focus more on the quality of dedication and innovation within the work done and in forming positive relations with clients.

 Kaven Cooper, Award Coordinator discusses the success of this year’s programme: “It is with great pride that I present the winners of this prestigous awards programme. Congratulations to all my winners, and best of luck for the future.”  

SME News prides itself on the validity of its awards and winners. The awards are given solely on merit and are awarded to commend those most deserving for their ingenuity and hard work, distinguishing them from their competitors and proving them worthy of recognition.”

We pride ourselves on offering a “personal service” where you case is handled by experienced Solicitors practising only in this area of law and with our practice handling cases largely in the local area we can offer availability by in person to speak to your solicitor when required reinforcing our company motto of “personal care for medical claims”. We are honoured to be recognised as a leading firm in Clinical Negligence Law in our area.

Please do visit the SME Legal website for more details at https://www.sme-news.co.uk/2019-the-2019-sme-legal-awards-press-release for the press release and https://www.sme-news.co.uk/2019-armstrong-foulkes-llp for our award page.

As always do not hesitate to contact us and speak to one of our qualified solicitors on 01642 231110 on a no obligation basis if you have suffered medical negligence or have concerns about treatment you have received.

Joanne Davies – May 2019

Delay in diagnosis of ruptured oesophagus

In December 2015, Mr H underwent surgery to his left hand.  Afterwards, he vomited as a result of the anaesthetic he had been given, experienced a lot of pain and then began to vomit blood.  He was given an anti-emetic (to stop him being sick) and pain relief.

Over the next few days his condition deteriorated and he was in a lot more pain.  An x-ray and CT scan were performed which showed he had ruptured his oesophagus.  Unfortunately, due to the delay in diagnosis, it was no longer possible to surgically repair his oesophagus and it had to be left to heal by itself.  However, Mr H required open surgery to insert a tube into his stomach through which he was fed for 4 weeks.  He then had to gradually reintroduce drinking and eating, firstly with water, then juice, followed by soup and finally a soft diet.

A few weeks after his discharge from hospital, Mr H had to be readmitted to hospital as his oesophagus had re-ruptured.  Once again, he had to be fed through a tube into his stomach.

The hospital admitted very early on that they should have diagnosed the ruptured oesophagus much earlier when, on the balance of probabilities, Mr H would have undergone surgical repair and avoided all the subsequent problems.  After negotiation between the parties, the case was settled for £45,000.

If you or a family member think you may have received substandard medical treatment and would like advice on bringing a medical negligence claim, please telephone us on 01642 231110 and one of our solicitors will be happy to advise you.

Kathryn Watson – May 2019

LIMITED TIME TO CLAIM- DON’T DELAY IN SEEKING ADVICE

A lot of people are aware, mainly from television and radio advertisements, that you have 3 years to bring a personal injury/clinical negligence claim.  This is what is known as the limitation period.  If you do not start court proceedings within 3 years of the allegedly negligent treatment, or within 3 years of when you suspected or ought to have suspected you may have received negligent treatment if that is later, you may be barred from bringing a claim.

What these adverts often do not make clear is what needs to be done before you will be in a position to issue court proceedings.  These adverts often relate to simple personal injury or road traffic claims.  Clinical negligence claims are by their very nature much more complex and the following steps need to be taken before we can issue court proceedings:

  • We need to obtain all of the relevant medical records.  Under the Data Protection Act 2018 (for living patients) and the Access to Health Records Act 1990 (for deceased patients), the holder of these records, such as the hospital or GP, has one month to disclose them to us.  Frequently the records are not disclosed to us within this time and we have to threaten or, in some cases issue, proceedings purely for a court order for disclosure.  If we need a court order, this can take several months to obtain.
  • We then need to obtain expert evidence on breach of duty (what if anything was done wrongly) and causation (whether this caused any injury).  The experts we use are at the very top of their field and so are usually very busy with NHS work, their private practice and other medico-legal work.  It is therefore not unusual to have to wait several months for a report but as cases stand or fall on the expert evidence, it is important we go to the right expert even if this results in some delay.  In a lot of cases, we need more than one expert to assist us in proving the claim.
  • Once we know what our allegations are, we need to put these to the Defendant under the pre-action protocol.  The Defendant then has 4 months to investigate and respond.
  • During this time, we need to investigate the long term effect the injury has caused and the value of the case.  This is frequently far from straight forward, particularly when someone’s prognosis is not yet known, often because they are still receiving treatment for their injury.
  • Should the Defendant make a reasonable offer of settlement once they have investigated the claim, court proceedings will not be necessary.  However, if they deny they did anything wrong or even if they admit it but make too low an offer, we will then need to issue proceedings.

People frequently contact us regarding a potential medical negligence claim only a few weeks or months before the limitation period expires.  This is completely understandable; they have often had a life changing injury which has monopolised their time and attention, lost a loved one which has taken some time to come to terms with, or sometimes they simply hope they will make a full recovery and so will not take matters any further.  Whatever the reason, these people have been through an awful time and 3 years can pass by very quickly.

Whilst these people have our utmost sympathy, we are unable to take on a clinical negligence claim if we do not have enough time to investigate.  Whilst there is the possibility of the Defendant agreeing to give us extra time to investigate or a Judge allowing the claim to be brought out of time, there is no guarantee we would be able to secure either option and ultimately the claim may fail, not because of the merits of the claim, but simply because it has been brought too late.

If you think you or a family member has been injured as a result of medical treatment, please seek advice as soon as possible.  Whilst the limitation period may not start as soon as the negligence occurred if you were unaware of it and had no reason to suspect otherwise, the 3 year period will start to run as soon as you suspected, or ought to have suspected, you may have received negligent treatment.  This is known as your “date of knowledge”.  You have 3 years from your date of knowledge to bring a claim, and this can range from the time the negligence occurred, if you were aware of it straight away, to several years later.

We appreciate that should you have been injured as a result of medical treatment, you and your family will have a lot to deal with without the added stress of a legal claim.  However, by the time you feel able to investigate the claim, it may be too late and you may be unable to secure compensation for your injuries.

Our solicitors try to make bringing a claim as easy and stress-free as possible as we understand that you will no doubt be going through a very difficult time.  If you would like advice about treatment you or a family member has received, please telephone us on 01642 231110 for some free, no obligation advice from one of our solicitors.

Kathryn Watson – April 2019

Lexcel Award – excellence in Legal Practice Management and Client Care

We are delighted to announce that following re-assessment in February 2019 our firm were awarded again the Lexcel Award for meeting a high quality of standards in practice management and client care. The Award is made by the Law Society of England & Wales if a firm can demonstrate excellence in the ways they manage the practice and deal with clients. Once awarded there is an annual assessment and a more thorough assessment every 3 years to ensure that a firm continues to meet the requirements for this. We were first awarded this by the Law Society in 2015 and are pleased that we continue to perform to the high standards expected to qualify for this.

Our staff work hard to ensure we maintain the standards in the seven different areas that are assessed:

  1. structure and strategy,
  2. financial management,
  3. information management,
  4. people management,
  5. risk management,
  6. client care,
  7. file and case management.

In many areas we were noted to have met and also exceeded the necessary requirements. The assessor commented that the firm “was a very notable demonstration of Lexcel compliance” and that “it was a pleasure to discover all of the requirements Lexcel standard has been met and no non compliances raised”. We are proud to have qualified for this award again and will continue to strive to meet and exceed these standards in the years to come.

Joanne Davies – April 2019

Favourable changes in claims for surrogacy

As a firm we have previously acted for clients who have lost the ability to conceive and carry a child naturally as a result of medical negligence.  Until very recently our hands have been tied as to what our clients could claim for.  We have been able to recover as compensation the costs of IVF treatment and in some cases for our clients to engage a surrogate in the UK to carry a child on their behalf and the expenses associated with this but there are strict limits which reflect the current law in the UK which in turn have meant a limit on compensation levels.

Despite surrogacy becoming increasingly popular and accepted, the law in the UK has not quite kept up with this so while surrogacy is legal, it is also restricted, particularly when compared to the laws in other countries such as the USA.  Notably:

  1. In the UK no one can profit from surrogacy.  Therefore the surrogate can only claim her expenses.
  2. In the UK, once the child is born, the surrogate is regarded as the legal mother.  This is even the case where the surrogate has carried someone else’s biological child.  A court order is required to give the intended parents the correct legal status and it is possible for the birth mother to refuse to part with the child.
  3. In the UK, the surrogate will chose the parent/parents she wants to assist.  This is often done at “parties” which can be intimidating and frightening for couples who have already been dealt a vicious blow.

In the recent case of XX and Whittington Hospital NHS Trust (2017) EWHC 2318 QB, a High Court Judge held that XX’s claim for the expenses of using a surrogate in California where commercial surrogacy is widely accepted and legal were not recoverable because commercial arrangements in the UK were illegal and it was against public policy.  He therefore limited XX’s claim to using her own egg’s and a surrogate in the UK and the associated costs of that.  The total compensation he allowed for this was £74,000 which was intend to produce two children.

Despite the damning judgement, the Judge did suggest that the Supreme Court which is the final court of appeal in the UK may see things differently.  XX was therefore allowed to appeal this decision and the matter was heard at the Court of Appeal in November 2018.  The outcome was that her appeal was successful and it was held that she should not be barred from recovering reasonable compensation for her loss which would include the costs or entering into a lawful commercial surrogacy contract in California.  She would not be breaking any laws.

This is an exciting development in this area of the law.  Claimants from the UK who need to engage a surrogate can now claim the costs entering into a contract with a surrogate in the USA who essentially carries and gives birth to other people’s children for a living.  Claimant’s will now no longer be restricted to having to use their own eggs but will be able to use donor eggs from a surrogate of their choice or another donor and they will be able to return to the UK with the child legally theirs.

The obvious downside to this in terms of the “public purse” is the difference in cost.  In the USA, to produce two live births via a surrogate the associated costs will run into perhaps hundreds of thousands but to someone who has been told they will not be able to have a child, no amount of compensation can restore them to how they would have been but for the negligence.

If you have been affected by infertility as a result of failed or unacceptable medical treatment, please contact us to discuss this further.

Ashleigh Holt – January 2019

Court allows patient to seek further compensation should she develop progressive lung condition

LH suffers from asthma.  In 2006, when she was 13 during a PE lesson at school, she used her inhaler which had been in her pocket along with 2 earrings.  She felt a sharp scratch in her throat and began to cough badly.  She then discovered one of her earrings was missing and assumed she had inhaled it when she had used her inhaler.  She immediately went to A&E when she explained what she thought had happened.  The doctor treating her thought she had instead swallowed the earring.  No x-ray was performed, she was reassured and sent home.

Over the next few years her asthma worsened and in 2014, she underwent a chest x-ray as a result of her increasing problems which included shortness of breath and a persistent cough.  This x-ray showed the earring in her lung which had collapsed as a result.  Fortunately, the earring was successfully removed and LH’s symptoms improved.

The hospital very quickly admitted that a chest x-ray should have been performed when she attended A&E in 2006 and this would have revealed the presence of the earring in her lung.  They admitted it would have been removed and she would have avoided the deterioration in her asthma from 2006 to 2014, along with the collapse of her lung.

However, they denied the long term effects this incident has had on LH.  It was the evidence of our expert respiratory physician that as a result of this incident, LH now has a 25% risk of developing bronchiectasis, a progressive life altering lung condition which may affect her ability to work and care for herself.

LH had 2 options to compensate her for this risk.  Firstly, she could settle on a full and final basis for 25% of what she would receive if she did develop the condition (to reflect the fact there is a 75% chance she will be fine).  Secondly, she could settle the case on the basis that she will not develop the condition but reserve the right to return to court for further compensation should she go on to develop bronchiectasis.  This is known as provisional damages.  It was our advice that this latter option provided far greater security and ensured she would receive full compensation if the worst happened.

LH followed our advice and sought provisional damages.  This was resisted by the hospital for a long time but they eventually conceded and the claim settled shortly before trial for £20,000 and the right to seek further damages should she be diagnosed with bronchiectasis at any point in the next 25 years.

This case highlights that when a mistake has been made, the long term consequences are often unknown until a thorough investigation has been completed.  Here, LH was unaware there was any risk to her future health as a result of what had happened until we obtained evidence from an expert in respiratory medicine.

If you or a family member are concerned by medical treatment you have received and the potential effect it has had on you, please do not hesitate to contact us and one of our solicitors will be happy to advise you.

Kathryn Watson – January 2019

District Nurses mismanagement of pressure sore leads to death of disabled patient

Mrs R was a mother of 3 in her early 50s and suffering from Multiple Sclerosis when she developed a pressure sore to her sacrum.  This was identified during an admission to hospital.  When she was fit to be discharged arrangements were made for the community nursing team to manage the sore.

Despite identifying the sore as grade 3 and noting that an air mattress was needed, this was not then ordered for a further 30 days.  Over the next few weeks it was clear that the wound was deteriorating and becoming necrotic.  A Tissue Viability Nurse (TVN) was eventually asked to see Mrs R and she prescribed good treatment which would soften and debride the wound and kill and protect against bacteria however this advice was not followed and instead a dressing was applied which would not alter the wound status.

The wound continued to worsen and became inflamed and the TVN recommended hospital admission as it was suspected that she was becoming septic.  Mrs R was treated with intravenous antibiotics but her pressure sore was now described as grade 4 and so she was discharged from hospital with a Topical Negative Pressure (TNP) dressing however the district nursing team were unable to manage the TNP and it transpired that it had not actually been working since she was discharged from hospital.

Over the next few days Mrs R looked increasing unwell.  She was losing weight and was suffering nausea and her family were struggling to cope with the dressing of the wound and caring for her.  The community nurses continued to visit but the record keeping became sparse and less detailed.  Mrs R continued to decline until she was admitted to hospital after being found unresponsive.  On admission, bone was seen to be clearly visible through the wound to her sacrum.  She was severely septic and no treatment could be offered.  She sadly passed away shortly after, only 5 months after the sore was first noticed.  It was concluded that the most likely source of the infection was her pressure sore.

We were approached by Mrs R’s husband and sons to investigate the standard of care their wife and mother had received and the independent expert reports we obtained were damning of the standard of nursing case given to Mrs R.  In particular, the independent nursing experts was of the view that they had failed to:

  1.        Arrange for pressure relieving equipment soon enough
  2.        Arrange for a TVN visit soon enough
  3.        Follow the TVN’s advice and the Trust’s own policy for managing pressure wounds
  4.        Manage dressings appropriately
  5.        Arrange for further review/earlier re-admission to hospital

With proper treatment the view was that Mrs R’s sore would have healed and a second medical expert agreed that the failures in her treatment and care resulted in her death from sepsis.

When these allegations were put to the Trust responsible for the community/district nurses, we were faced with denials and the Trust were very keen to push the burden and the blame on Mrs R and her family.

As a result court proceedings were commenced but shortly after solicitors acting for the Trust entered into negotiations to settle the claim and Mr R agreed to accept a five figure sum.

This was a terribly sad case.  Mrs R and her family had been dogged by her ill health for years but they had rallied.  For her to be failed so absolutely when she desperately needed help most devastated them.

Pressure sores require careful and intensive treatment.  They don’t resolve on their own and as this case shows they can prove to be fatal.  If you or someone you know has suffered a pressure sore or deterioration of a sore due to poor medical care and treatment, please contact us for a free discussion.

Ashleigh Holt – October 2018

Failing to act on abnormal Echocardiogram leads to heart failure

Mr P was referred to a Consultant Respiratory Physician at James Cook University Hospital after developing shortness of breath and a cough in 2014.  Over the next 3 months the Consultant arranged a series of investigations including an Echocardiogram (Echo).  This showed Mr P had a mild left ventricular systolic impairment.

Mr P was told the Echo was normal and 3 months later he was referred to another hospital for a second opinion.  The referral letter requesting the second opinion advised that the  Echo was “normal”.

Mr P’s condition continued to deteriorate.  By March 2016 he was struggling with day to day activities.  He was unable to sleep as he was struggling to breathe when he lay down.  He could not make it upstairs to bed.  In May 2016 he attended a review appointment and his condition prompted his Consultant to admit him to hospital there and then for further investigation.  A second echocardiogram now showed significant left ventricular dysfunction and Mr P was told he was in severe heart failure.  His left ventricle was narrowed and his aorta was only working 15 – 20%.

Mr P’s care was transferred to a Cardiologist and he was started on a number of anti-heart failure medications.  He was initially unable to return to work as a HGV driver as his condition had to be reported to the DVLA and his driving licence.  It was later returned when a further echocardiogram showed that he was responding to the medication and his condition had improved.

We investigated the standard of care Mr P had received with an independent Respiratory Physician and Cardiologist.  They confirmed that he should have been referred to a Cardiologist following his first Echo and he would have been commenced on treatment 2 years earlier.  Had this occurred, the progression of his condition would have been slower and he would not have developed heart failure in 2016.

These allegations were put to the Trust and were admitted.  A financial settlement was achieved quite quickly for a 5 figure sum.  However, Mr P had lost 2 years of his and his young son’s life and his heart condition had been accelerated.

If you have suffered an injury as a result of a test or investigation being wrongly reported or interpreted and you would like to discuss this please contact us for free no obligation advice.

Ashleigh Holt – September 2018

Avoidable pressure injuries admitted by hospital as part of their duty of candour

Mrs P, an 80 year old lady at the time of treatment, developed severe pressure injuries to her heels and buttock whilst an inpatient at the James Cook University Hospital.  The pressure sore to her right heel was particularly serious, requiring multiple courses of antibiotics due to infection of the bone, hospitalisation, surgical debridement and taking 9 months to heal.

Initially, she did not consider that these sores may have developed as a result of substandard treatment.  However, the hospital adhered to their duty of candour which stipulates that medical professionals should be open and honest with patients and admit when something has gone wrong.  It was only after they told her they thought the sores were avoidable did she decide to contact us for advice.

We took her case on to investigate the standard of the nursing care whilst she was an inpatient.  Our nursing expert was critical of the nurses who had been responsible for Mrs P and identified a number of failings in their care, in particular failing to ensure adequate pressure relief by the use of repositioning and pressure relieving devices.  We then obtained expert evidence from a vascular surgeon on the effects of the injuries Mrs P sustained and he was also critical of the treatment she received from her treating doctors – she was suffering from leg ischaemia which required revascularisation surgery.  Had this been performed earlier, the injuries to her heels would have been avoided.

The hospital was slow to respond to our allegations of negligence and only did so once we were about to issue court proceedings.  They admitted liability and the claim was settled shortly thereafter for £25,000.

In this case, the hospital followed the duty of candour policy and informed Mrs P that, in their opinion, the injuries she sustained were avoidable.  Often, hospitals and doctors are not so forthcoming.  If you think you have suffered an injury as a result of negligent treatment, please contact us on 01642 231110 and one of our solicitors will be happy to advise you.  There is no obligation on you to pursue a claim and the initial discussion is free of charge.

Kathryn Watson – September 2018

Changes to requests for copy medical records

As a patient, you have a right to see and obtain copies of your medical records (see our previous post https://armstrongfoulkes.co.uk/your-rights-to-access-medical-records/). However, with the introduction of GDPR and the Data Protection Act 2018, the rules surrounding such a request for copy records have changed.

Data Protection Act 2018

Under the new rules, a patient still has a right to request copies of their medical records and the procedure for doing so remains the same.  However, whereas before the organisation holding the records (such as a hospital or GP practice) could charge up to a maximum of £50 to provide copies, there should now be no charge unless the request is “manifestly unfounded or excessive”.  Therefore, in the vast majority of cases, you should be able to obtain copies of your records free of charge.

The new rules also provide that you should receive copies of your records more quickly than previously.  Under the old rules, a provider had 40 days to provide copies whereas this has now been reduced to 1 month from receipt of the request.

Access to Health Records Act 1990

The new rules only apply to request for copy records for a living person and therefore the rules relating to requests for records of someone who has died have not changed.  Such requests are still governed by the Access to Health Records Act 1990.  This act says that the person providing the records is entitled to charge a fee and there is no maximum amount.

We are always happy to speak to you if you need assistance or advice on obtaining your records or about any possible claim. Please feel free to call one of our specialist solicitors on 01642 231110 for a free no obligation chat.

Kathryn Watson – August 2018

No action on suspicious chest x-rays at James Cook University Hospital in the Summer of 2016

SB was only 54 when she died of lung cancer.  A Wife and Mother.  Five months earlier she had been admitted to hospital complaining of chest pains.  She had a chest x-ray which revealed a tumour with a recommendation for an urgent CT scan.  Regrettably SB was not informed of the results and advice for a CT scan was not followed.  She was discharged home with a diagnosis of musco-skeletal chest pain with no further action planned.

The tumour grew.  It wasn’t until 4 weeks before her death that she and the Family were told she had incurable lung cancer and palliative treatment was all that could be offered.  Around the same time the results and recommendation of the earlier chest x-ray were passed on to SB and her Family.  An opportunity for treatment and surgery had been lost and a life unnecessarily shortened.

The family consulted us and we were able to secure an early admission of fault and payment of compensation to the Husband.  I’m afraid that was all the legal system could do.

However, it later transpired that this was not the only missed chest x-ray at JCUH in the Summer of 2016.  We had two other cases where women, also in their 50’s had a chest x-ray which identified a tumour with recommendations for further tests, and in both those cases the information was not acted upon and the women died.  We have taken the matter up with the Chief Executive of the Trust and are awaiting a formal response.  Apologies have been given over the phone and we have been told an explanatory letter is on its way.

Delaying a diagnosis and treatment of cancer of any kind can mean the difference between life and death.  If you have been affected in this way, please get in touch to discuss if there is anything we can do to help.

Hilton Armstrong – July 2018

General Data Protection Regulations (GDPR)

To run a case Lawyers collect and process a lot of information on clients including some personal data e.g. date of birth, email address, national insurance number, passport or driving licence number etc.  We also share this data with others e.g. experts we instruct, the Barrister on the case, the Defendants solicitors etc.  We have to do this or we couldn’t pursue the claim.

The law is changing on 25 May 2018.  This is when the General Data Protection Regulations (GDPR) comes into force.  It impose obligations on all organisations (not just us Lawyers) to look after this personal data safely, process it lawfully and restrict its access by others.  Clients have the right to see this data and have it deleted at any time, although insisting on deletion whilst a case is ongoing would of course not be practical.

I think GDPR is good news for all of us.  It should ensure that our personal data is looked after more securely by all organisations and not passed on or sold to others without our specific consent.  I am hoping the amount of spam emails and the unsolicited calls and texts we are all plagued by at the moment substantially reduces.  Fingers crossed, although I am not holding my breath!

Hilton Armstrong – June 2018

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

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

Dan Richardson in the Red Bull Soapbox Race 2017

For the second time in two years a team of my friends and I were lucky enough to take part in the Red Bull Soapbox race held at Alexandra Palace in London.

Out of the over 4,000 teams that applied 70 were chosen to take part in the day. On the race weekend we lined up next to some fantastic soapboxes, including a Harry Potter inspired motorcycle and sidecar, a giant Donald Trump in a bathtub and my personal favourite, a pair of raptors from Jurassic Park! The quality of design and construction of some of these soapboxes was outstanding.

Our soapbox was built from scratch and inspired by the Mad Max films. While we were all very happy with how the soapbox tuned out, in hindsight our heavy and thick costumes may have been a little warm for a hot summer day spent out in the sun!

Although we took part in the race back in 2015 we are sure that the track must have somehow gotten steeper, and the jumps bigger, in the last 2 years. Particularly daunting this year was a water jump, the first jump on the course and for many teams the only one they got to.

Despite the obstacles both my co-driver and I got to the end of the track in one piece, although unfortunately the same can’t be said for our soapbox, which chose to disintegrate spectacularly on the way down, I am sure adding to the thrill for the spectators!

Now it’s back to the drawing board for 2019’s idea……..

Dan Richardson, August 2017

[“All Dan’s colleagues here at Armstrong Foulkes were very proud, thrilled and a little scared as we watched video of him fly down the course, dodging obstacles in a disintegrating soapbox! However, like the trooper he is, despite being a little bruised and banged up he was straight back in the office and is already planning for next race! Well done Dan” – Editor]

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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