Those who have been the victim of medical negligence are in a vulnerable position.
You may feel that you have already placed your trust in one professional and been let down. This may make you wary of approaching another professional – this time a lawyer!
The most important, honest and objective thing we can say to you is that you must instruct a specialist firm of Solicitors to deal with your Medical Negligence case.
This type of work simply cannot be trusted to ‘any high street firm’.
You should go to a firm with a specialist Medical Negligence Department.
In particular, one that has a lawyer or lawyers within it whose expertise is recognised by their membership of a specialist Medical Negligence Panel, such as the Law Society’s Clinical Negligence Panel.
The need for such specialism is recognised throughout the medical negligence field.
For example, the Legal Aid Agency will not allow any firm to work in this area unless they have such a panel member.
Throughout the whole of Kent we are one of only 3 firms with panel members.
We are the only firm in East Kent.
Nick Fairweather is a member of the Law Society’s Medical Negligence Panel and has been for 15 years.
He is supported by an experienced team of lawyers making up a department that is 6 persons strong all working full time on medical negligence cases.
Most of all, beyond all the accreditations, we stress to you our reputation in this area, not just from the high profile, high value cases that you may have read about, but the work we do on a daily basis in dealing with all manner of medical claims from the smaller value through to the most severe.
We have support from other departments including those who specialise in mental health work.
Above all you will find us friendly, approachable, caring, sensitive and sympathetic whilst professional and reliable in our dealings with you.
Before making a decision, however, take some time to look through our site and remember that we offer a free assessment of your case without any obligation at all in the first instance.
What is a Medical Negligence Claim?
The test for medical negligence is, in a sense, quite ‘Doctor friendly’.
The Courts recognise that everyone can make a mistake – even a reasonable competent medical practitioner.
Such mistakes (those which any reasonable competent skilled professional exercising due care and diligence could make) are not actionable in law.
Rather, it needs to be established, primarily through the evidence and opinion of a specialist in the same area, that the particular doctor, dentist, hospital, nurse or other healthcare professional who treated you made a mistake which no reasonably competent person/organisation could have made.
This is known as the ‘Bolam test’.
It is named after a 1957 decision of the Courts in the case of Bolam -v- Friern Hospital Management Committee  2All ER 118.
With minor modifications, the test in the Bolam case still stands true today.
The Bolam test is one of a number of reasons why medical negligence litigation is difficult and only practised by a small number of specialist lawyers and firms, such as Fairweathers Solicitors LLP.
One of the most important aspects of what we do is to work with a large team of expert clinicians, mainly Consultants, the length and breadth of the country, in analysing our clients’ cases.
At the heart of that work with our experts is having them scrutinise whether negligence has occurred in your case – according to the Bolam standard.
Am I too late to make a claim?
All types of legal claim, including medical negligence, have time limits attached to them.
Limitation can be complex in medical negligence claims.
The basic starting point is that a case should be brought within 3 years of when the negligence took place and you were injured.
It may be the case, however, that you suffered an injury but were not aware of it at the time.
In those circumstances, an injured patient has 3 years to bring a claim, not from when the negligence took place or the injury arose, but from when he/she had knowledge of not only the injury but that it was significant and attributable to acts or omissions constituting negligence on the part of an identifiable Defendant.
This may mean that you can bring a case more than three years after the negligence/injury.
It is important to note that you must act reasonably in this regard.
The Court will treat you as having the knowledge that you would reasonably have upon proper and reasonable enquiry.
Further, and in any event, even if you are beyond the 3 year time limit in terms of the date of the negligence/injury and as regards knowledge, the Court still has an overriding discretion, pursuant to Section 33 of the Limitation Act 1980, to allow a late claim, if it is ‘equitable’ to do so. The Court has a wide discretion and will take into account all the circumstances of the case including the length and reasons for the delay and how the parties have conducted themselves. In medical cases the Court is likely to have particular regard to whether the passage of time has prejudiced the Defendant’s ability to defend the case. Often, it will not have done so – especially if medical records from the time of your treatment are still available.
Different rules may apply in certain situations – e.g. fatalities, cases brought on behalf of children, claims by those with a disability etc.
The most important thing is to seek expert advice quickly and not ‘sleep on your rights’.
We will always assess limitation as part of our free initial assessment of your case.
How will my claim be funded?
We recognise that this is, of course, an important question for you.
We view effective funding regimes as being fundamental to providing access to justice for clients.
We will be transparent with you, in relation to costs, at all points in our dealings with you.
When you initially make contact with us, you will speak with a case screener who will take details of your case, financial information from you to check your legal aid eligibility, (for applicable cases, where legal aid is still available), and discuss legal expenses insurance with you.
The screener will also liaise with you, very often, to secure further information and documentation, before taking your case before our weekly Departmental meeting when the case will be considered in detail.
If we do not think there is a viable case to take forward then you will be notified of this, (with our reasons), and our screening the case up to that point will not have cost you anything.
If we think there is a viable case to investigate then it will be allocated to a fee earner who will contact you and will discuss your case, including funding options, direct with you.
If you wish, we will set up a no obligation 30 minute free interview (which can be in person or over the phone) to discuss the funding options without any obligation whatsoever.
If you are happy to go forward with a case, then it will be funded in one of the following ways:-
1. Legal Aid
We are one of a very limited number of specialist firms (only 3 in Kent) who are authorised by the Legal Aid Agency to advise and represent people in Medical Negligence cases under Legal Aid.
Legal Aid is only available in medical negligence claims (since 1st April 2013) where:
a. A child was injured in utero (during pregnancy) or within 8 weeks of birth; AND
b. the injury is neurological and the child is severely mentally or physically disabled as a result.
If you qualify for Legal Aid, financially, and on the merits, then we will sign you up to an advisory Legal Help scheme initially, followed by certificated funding to allow representation.
Depending on your means, you may have to make a monthly contribution towards Legal Aid, (which you will recover if the case is successful).
More often, however, Legal Aid is provided without cost to you.
If your case is not successful, subsequently, however, we are paid by the Legal Aid Agency.
Also your legally aided status provides costs protection.
If the case is successful then the vast majority of your costs are paid by the other side, (in addition to your damages).
2. Before the event insurance
Many people are not aware that they have legal expenses insurance cover pursuant to a home insurance, (buildings or contents), policy.
We will ask you to check your policies when you first make contact with us in this regard.
Such policies normally provide £50,000 worth of cover for your costs and the other side’s legal costs.
Before the event insurance is useful but can be restrictive and we will discuss fully with you whether you have such insurance and whether it is the best way to take forward your case.
3. Private funding
People very rarely have to fund their cases privately because there are other options to take them forward.
4. A Conditional Fee Agreement (CFA)
Increasingly, most of our work is undertaken under CFAs, (sometimes known as a ‘no win no fee agreement’), backed by After the Event Insurance (ATEI).
Like Legal Aid, the rules surrounding CFA’s changed significantly from 1st April 2013.
We will explain how everything works before you enter into an agreement and confirm everything in writing.
The basic position, however, is that:-
If Your Case is not Successful
If we do not win your case then we do not get paid for our legal work at all (‘no win no fee’). Nor does any barrister we use as they will have to work under a CFA also.
The ATEI will pay for any disbursements (non legal expenses such as Court fees, paying for experts’ reports etc) and the other side’s costs if the case is unsuccessful after issuing proceedings.
So far as ATEI is concerned there are 2 options:-
a. Recoverable Premium
This covers the cost of securing the all important report from an expert on liability and causation.
If your case is unsuccessful the ATEI will pay the cost of this under this type of insurance.
You don’t have to pay a premium for the insurance – it is deferred until the end of the case. It too is insured so there is nothing to pay if you lose.
Cover is provided at premium levels which depend upon the value of your case.
Thus, you can see, that under a CFA backed with ATEI there is no risk to you if the case is unsuccessful at the liability stage.
b. Irrecoverable Premium
This covers the cost of a condition and prognosis report and other disbursements such as court fees.
If your case is unsuccessful then again as above you pay nothing- the insurers pay for the report and other expenses and there is no premium to pay as this too is insured.
Again the levels of premiums are dependant upon the value of your case.
If Your Case is Successful
If the case is successful, (through a Court judgement or, more usually, earlier settlement), then, as well as paying you the damages you deserve, the Defendant (other side) will also pay additionally most of:-
Your legal fees payable to us.
Any barrister’s fees.
- The ATEI premium- on the recoverable ATEI only.
Please note, however, that, under the April 2013 changes the defendant no longer pays the following:-
A success fee to us.
- Any success fee payable to any Barrister involved in the case.
- The non-recoverable ATEI premium.
Please rest assured that we will discuss and explain everything to you very carefully indeed in a supportive, sympathetic and professional manner, without any pressure being applied to you and with everything confirmed in writing after agreements have been entered into.
The main message is that you should not see a lack of funds as any bar to taking forward a medical negligence case.
How will My Case Progress?
Although no two cases are the same, most cases will follow a similar pattern, in terms of how we investigate your claim and take it forward so as to secure compensation for you.
We will first of all screen your case free of charge, then set up funding to take the case forward (see How will my claim be funded?).
We will then investigate the case in order to seek to establish that negligence has occurred (see What is a medical negligence claim?).
This will involve:-
Firstly, securing all your medical records and materials, sorting and considering these and reviewing your case in light of what they show, reporting to you at that point.
Secondly, if the case remains viable, we will look to instruct one or more experts.
Usually, the first expert we instruct will address liability, whether there has been negligence – on a ‘desktop’ basis (ie without having to see you at that stage).
We will liaise with you in sourcing an appropriate expert and instructing them.
Often, receiving the first expert’s report is the most important stage of the case – the point at which we can start to say, with confidence, whether you have a case to take forward.
If you do then we may instruct the same and/or further experts to address issues like causation and, in particular, how you are now and what the future holds – by way of a condition and prognosis report (for which purpose you will need to go and see the expert).
Thirdly, at the same time, we are likely to send a Letter of Claim, under the Pre Action Protocol, setting out full details of what happened in your case and why we are alleging negligence – together with outline details as to the consequences flowing from the negligence. A Letter of Claim is sent under the Pre Action Protocol for clinical disputes and the Defendant has to respond to it, stating their case equally fully, within a Letter of Response, within 4 months.
If the Letter of Response makes admissions, then the likelihood is that we will work with you and with our experts to quantify the case and try and settle it short of Court proceedings being necessary.
If, on the other hand, liability is disputed then we liaise further with our experts (and perhaps a barrister at this stage) to review your case and, if it remains strong (as it usually will) then we will issue proceedings and take them through the Court.
Similarly, we will issue proceedings and progress them if, whilst admitting liability, the Defendant is unrealistic to the amount of damages they wish to offer to you – in which case we will issue proceedings to get the Court to assess these.
Once proceedings are issued, the first important thing to happen is that a junior Judge (a District Judge or Master) looks through the case papers and holds a Case Management Conference – a hearing (often by telephone) at which both parties’ representatives discuss the case with the Judge and agree (or the Judge orders) what steps need to be taken in order to progress it so that it is ready for trial.
Such steps are known as ‘directions’.
The first standard direction/step to be taken, ordinarily, is for the parties to list all the relevant documents they have and send the other copies of those documents.
Next up, witness statements are prepared and exchanged.
Beyond this, expert reports are finalised and exchanged.
The experts then meet, usually within each specialism, to discuss their views and try and narrow issues and explain why they disagree if they do. They meet pursuant to an agenda drafted by the lawyers and produce a report of their discussions.
The Court will expect the parties, at various points, to quantify the financial losses in the case within a schedule.
Depending on the complexity to the case, we may involve a specialist medical negligence barrister at the appropriate point.
The barrister may advise on the papers, in writing, or they may ask you to accompany us to a meeting with the barrister in their chambers in London – often attended by the experts in the case.
The case is likely to settle without having to go to hearing.
If a hearing is necessary, however, then there will normally be a lengthy meeting with a barrister and experts, you and us prior to the hearing.
You will usually be represented by the barrister at the hearing but we will attend Court with you as well.
We need to stress that very few cases go to hearing.
Most are settled short of Court hearings, many these days, without the need for Court proceedings.
In broad terms, you might expect your case to settle within one year of meeting with us – if it settles pre issue.
If it settles post issue then the case may take 18 months – 2 years.
If a trial is necessary then that may take place within 2 years – 2.5 years of your first meeting with us.
What compensation will I receive?
This is obviously a very important question and we will assess and advise you on the level of damages in your case, on a continuing basis, throughout the course of your claim.
In medical negligence cases, there are three types of damages available:- special damages (for financial losses), general damages (for the injury itself) and provisional damages (which assume that a particular condition or deterioration will not arise on account of the negligence in the future but allow you to return to Court if it does).
Special damages cover your financial losses.
In broad terms, the Court, in awarding such damages, is looking to put you in as close to the position you would have been, but for the negligence/injury, as it is possible for money to do.
Any reasonably foreseeable losses and expenses are recoverable under this heading.
So, for example, if your injury has prevented you working and you (or your employer) have suffered a loss of earnings accordingly, then these will be recoverable.
This can be a significant head of damage if people have been left unable to work on a long term or permanent basis.
It may be that the negligently caused injury means that you need further medical treatment. If so, you are usually entitled to have that undertaken on a private basis – ranging from further admissions and surgery through to outpatient care and physiotherapy or other treatment in the community.
Often, you may have been left with an injury that means that you require care and assistance with day to day activities.
In less serious cases, this may be provided by your partner, other family members or a friend.
If so, the reasonable time spent by that person looking after you can be recovered, at an hourly rate, on their behalf.
In more serious cases, you may need professional assistance provided through a nursing or care agency and have people attending your home to assist you, initially, or on a longer term basis.
These costs too, are fully recoverable from the Defendant.
In cases of severe injury the cost of purchasing and/or adapting a home to cater for someone with disabilities may be necessary.
In cases of adults or children rendered severely disabled by medical negligence, it may be that live in carers are needed 24 hours a day.
You may need to make many journeys to hospital and other appointments on account of your injury and travel expenses are, of course, recoverable.
So are any other reasonably foreseeable outgoings such as extra heating, electricity, laundry, postage, adaptations.
Remember, if a loss, expenses or outlay has arisen, which would not have done, but for the negligence and your injury, then provided it is a reasonably foreseeable financial loss it is recoverable, together with interest.
At our first meeting we will discuss what special damages are likely to be recoverable in your case and may well ask you to start keeping receipts and a log of journeys and expenses.
General damages compensate you for non financial losses – ie pain, suffering, loss of amenity (inability to get out and about and enjoy yourself and do all the things that you would normally do) caused by the injury.
Contrary to popular belief, English Courts are not the most generous when it comes to awarding these damages.
For example, a young person rendered paraplegic (without any bodily function from the neck downwards) on account of negligence, whilst retaining full consciousness, would only recover general damages running to a few hundred thousand pounds.
When one hears of large awards in the media they are generally made up of special damages – the costs of looking after such a person for life, their lost earnings over a life time etc.
The amount that you will receive in general damages is based on the level, nature, extent and severity of your injuries.
These are gauged using 2 primary sources:-
Firstly, we look at a publication called ‘The Judicial Studies Board Guidelines’.
This is a source put together by the Judicial Studies Board, periodically, whereby, awards made by Judges in cases up and down the country, as regards different types of injuries, bracketed together for similarity, are recorded within the guide.
This guide is increasingly influential and will be the ‘first port of call’ for the Court or lawyers on either side assessing your general damages.
Secondly, beyond this, we have recourse to case law precedents – decisions made by Judges in cases similar to yours as to the level of damages that should be awarded for a particular injury.
Of course, on the one hand, no two injuries are identical.
On the other hand, they can be looked at in analogous terms and awards calculated accordingly.
This is still a contentious area, however, with Defendants wanting to ‘play down’ injuries and so it is important that we support your case with expert evidence from appropriate specialists who will probably need to see and examine you and then produce a report covering the history of your injury, how you are at the time they see you and what your future prognosis is.
Provisional damages are awarded rarely. There are available, however, to cover the situation where, due to negligence and injury, a patient has been left with a small but appreciable risk of developing a serious condition or deterioration in the future because of the negligence.
A classic example might be someone who has suffered a head injury but has not suffered epilepsy, since the injury, a few years on from it.
In those circumstances, the chances of any epilepsy are small – perhaps 1-2%.
If it does arise in the future, however, then it would, of course, be devastating for the individual.
In these, or similar circumstances, the Court has the power to award provisional damages – ie a sum of money, based on the assumption that the person will not suffer epilepsy – whilst allowing them to return to Court for further damages if they do end up being unlucky enough to have epilepsy befall them in the future.
It is important that provisional damages are not overlooked in handling your case if they arise.