Tag Archives: The Legal 500

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

Hospital’s failure to treat infection resulted in “flesh-eating disease”

H underwent a caesarean section to deliver her first baby.  Whilst in hospital afterwards, she felt very unwell, with a raised temperature, feeling hot and cold, shivery and had an increased heart rate.  She also suffered from a lot of pain in the caesarean section wound.  Her blood test results were abnormal indicating she had an infection but despite this, she was discharged home to look after her new born son.

The following day, she went to see her GP who diagnosed a wound infection and prescribed antibiotics.  The day after, she had deteriorated further so she returned to hospital where she was diagnosed with necrotising fasciitis, commonly known as the flesh-eating disease.  She required 4 surgeries to remove large amounts of dead tissue which were incredibly painful for her and left her with scarring to her stomach.  She was distressed both by her own illness and the separation it caused from her new born baby and she subsequently developed post-traumatic stress disorder.

It was the evidence of our expert that she had clear signs of infection throughout her admission to hospital and these simply were not acted upon.  Had she been prescribed antibiotics at any time before her discharge 5 days after the caesarean section, the infection would have resolved and it would not have progressed to necrotising fasciitis.

The hospital denied this and suggested that the disproportionate pain she experienced following the surgery was because she was overweight. We alleged this pain was, amongst other symptoms, a sign of infection.  H’s weight was a common theme throughout the claim and reflected disparaging comments about her weight that had been made to H whilst she was in hospital.

As the hospital was of the view their treatment was reasonable, as was the decision to discharge her, we proceeded to issue court proceedings and the claim settled shortly thereafter.

If you suspect you or a member of your family has received negligent treatment and would like some advice as to how best to proceed, please contact us on 01642 231110 and one of our solicitors will be happy to speak to you and advise you on the merits of a clinical negligence claim.

Kathryn Watson – 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

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

Coronary disease misdiagnosed as tennis elbow

During the Christmas holidays Mrs A developed pain going down her left arm and pain from her right ear travelling down into her jaw, neck and top of her chest.  The pains would come and go in waves and would wake her from her sleep so when things did not resolve after a few days she attended a Walk in centre to see a GP.

The GP carried out an examination and diagnosed her as suffering from gastro-oesophageal reflux due to over indulgence in the festive period and tennis elbow for which she should take Paracetamol.

Mrs A’s symptoms continued and she began to feel worse.  She planned to make an appointment at her own GP practice when it re-opened but she was not afforded this opportunity and suffered a cardiac arrest at home in the meantime.  Her collapse was witnessed by her youngest child whose screams alerted Mrs A’s husband.  A 999 call was made and Mr A performed CPR until the Paramedics arrived.  Mrs A was taken to hospital but died a few days later.

Mr A approached us to investigate the standard of care that his wife had received from the GP who had seen his wife.  With the assistance of an independent GP expert witness and an independent expert witness in Cardiology we were able to establish that the GP had failed in his duty of care to Mrs A in not identifying that her symptoms could have a cardiac cause and to refer her urgently to hospital for investigations.  We were able to say that on the balance of probabilities, the results of these investigations would have been abnormal and lead to Mrs A being commenced on an acute coronary syndrome pathway including medication and stenting of blocked arteries.

With this treatment, she would have avoided the cardiac arrest and importantly she would have survived and lived to an old age.

Solicitors for the GP initially admitted breach of duty but denied that that the failure to refer Mrs A to hospital had made any difference to the outcome.  Formal Court proceedings then had to be started and the Defendants quickly made a full admission of liability for Mrs A’s death.

Mrs A had been the primary carer for her children while her husband worked and as a result the majority of the compensation claimed was for the loss of care and services Mrs A had provided to her family.  A 6 figure settlement was agreed between the parties and was  approved by the Court.

Acute coronary syndrome can be misdiagnosed as the symptoms, particularly in women, can mimic other conditions and can be atypical.  The consequences of failing to pick up on early signs can be catastrophic and as illustrated in this case, it can be fatal.  Early diagnosis and treatment is essential.

If you have suffered as a result of a missed or delayed diagnosis, we would be happy to discuss this further with you.

Ashleigh Holt – February 2019

The Legal 500 UK 2019 awards

We were delighted to have been shortlisted for this prestigious national award.  We didn’t win it but managed to get down to the final 8 firms in the country! The category we were in was:

  • Insurance: Individual: outside of London of the year – Hilton Armstrong

According to Legal 500 “Over many months of thorough research, we have conducted 70,000 interviews with in-house counsel, law firms and sets in the UK to pin-point the most capable, expert practitioners and firms operating at the top of their game across a number of different business sectors. The awards are unique in the legal industry as they recognise each element of the profession equally, representing the very best law firms, chambers, silks, in-house lawyers, business leaders and general counsel operating within the UK market”

The full list of categories is available  here:

The shortlists for the law firm awards are available to view here: https://www.legal500.com/assets/pages/awards/uk/2019/uk-2019-firms-shortlist.html

Hilton Armstrong – February 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

Top rankings again for Armstrong Foulkes LLP!

We are delighted that once again, we have received the top ranking in 2 prestigious guides to UK solicitors; Chambers & Partners and The Legal 500.  These rankings, which we have held for many years, are reviewed each year following interviews from clients and legal professionals with whom we work.

We are the only firm in the Teesside area to be awarded a Band 1 ranking for Claimant clinical negligence work by Chambers & Partners and we have also been awarded a Tier 1 ranking in The Legal 500.  We are described as a top-quality boutique with a superb reputation for complex clinical negligence claims and expertise in a wide range of matters”.  Our solicitors are praised for being “friendly, prompt when communicating and have really good specialist knowledge of their subject” and that “nothing fazes them and they obtain good results for their clients, who they place at the centre of each case.”

In these publications, Hilton Armstrong is described as “a tough and determined litigator” with “excellent judgement” who always explains matters clearly, is always approachable and keeps us informed as to what is happening and why.”

Joanne Davies is hailed for being “extremely meticulous” with clients reportedly being particularly impressed by the “very proactive, clear and understanding” way she handles claims.

Ashleigh Holt, who is described as being “experienced and intuitive” is applauded for conducting litigation “with exemplary vision and skill”. Interviewees report her to be “very organised, engaged with the issues and understanding of the situation.”

Kathryn Watson is also recommended with sources admiring “her knowledge and client service” with one client reporting “you can tell that she cares.”

We are proud to continue to hold top rankings in these two reputable publications and are gratified to receive such positive feedback, particularly from our clients as their opinions are what matter to us most.

If you or a family member have concerns about any aspect of medical treatment and would like no obligation advice from one of our solicitors, please do not hesitate to contact us on 01642 231110.

Kathryn Watson – December 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

Accreditation by the Foundation for Infant Loss

As solicitors specialising in Medical Negligence claims we are regularly approached by parents who are contacting us as a result of the loss of their child before, during and after their birth as a result of suspected negligence treatment. We know that despite our knowledge of the events and experience in these claims we can never know how these parents feel or what they are going through. We do however strive to be understanding and respectful in these situations. Our Joanne Davies, Ashleigh Holt and Kathryn Watson have therefore recently undergone training with the Foundation for Infant Loss to better understand the grieving process and what occurs in hospital after the loss of an infant. Our aim is to become better informed and improve a difficult experience pursuing a clinical negligence claim in these situations. As a result of this training Armstrong Foulkes is now proud to be accredited by and supported by the Foundation for Infant Loss. www.foundationforinfantloss.co.uk/. Our accreditation certificate is set out below.

If as a client or even as a visitor to our website we can offer you any further information on the Foundation and its services please do not hesitate to contact us. If you have suffered the loss of a child as a result of clinical negligence we appreciate that the thought of approaching a solicitor can be a daunting. Our solicitors are always prepared to have informal discussions by telephone without any obligation to proceed with a claim. If we can be of assistance please do not hesitate to contact us on 01642 231110.

Joanne Davies – July 2018

This is to certify that:  Armstrong Foulkes Solicitors

Are fully accredited and supported by The Foundation for Infant Loss Training

 

Signed:     

Dr Chantal Lockey

Chief Executive

The Foundation for Infant Loss Training

1 July 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

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

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

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

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

Armstrong Foulkes raises money for local centre for the blind

We are pleased to announce that over the last year Armstrong Foulkes has raised over £950 for a local charity, Teesside and District Society for the Blind.  In addition to our “Trick or Treat Tombola” at Halloween and regular “dress down days” we’ve received significant contributions from staff, clients and friends of Armstrong Foulkes.  Centre Manager, Rona Ashton thanked us for our tremendous effort and explained “the money raised will be put towards our costs for providing social activities for the blind and partially sighted people living in the Teesside area.”

The charity was brought to our attention by one of our client’s who suffered sudden blindness as a result of negligent medical treatment.  In 2010 she developed a recurrence of a condition she had suffered 20 years previously, benign intracranial hypertension. This can cause damage to the optic nerves and consequently visual problems.  A simple lumbar puncture would have revealed this and surgery would have halted the progression of her condition but the diagnosis was missed for over 1 year by which time, surgery was too late and our client lost her sight in her mid 60s.

The Blind Centre made a huge difference to our client in that she was able to meet and socialise with people who were similarly affected.  She enjoys regular days out and even holidays with the centre.  She said in the early days it gave her a reason to get up in the morning.  If you are interested in learning more about the charity please look at their website at www.teessideblind.co.uk

Injuries which arise from negligent medical treatment can be devastating and life changing.  If you have suffered physically or psychologically as a result of poor medical treatment, please do not hesitate to contact us.

Ashleigh Holt – 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