Clinical negligence
Updated April 2008
This information sheet is about the process of making a claim against a hospital or health care professional that you consider may have caused an injury, particularly in relation to disabled children, including reasons for bringing a claim, the procedure, funding, proof and compensation.
Why bring a clinical negligence action?
There are a variety of reasons for bringing a clinical negligence action; to get an apology, an explanation, a better understanding of what may have caused a child's disability and potentially financial compensation to help pay for extra support and care required as the result of disability. Furthermore a successful clinical negligence action may result in improvements being made to clinical practice thereby reducing the likelihood of further accidents.
Inevitably, the input of parents and carers in the early stages of a clinical negligence investigation leads to the re-opening of old wounds. However, choosing the right lawyer, with a detailed knowledge of cerebral palsy and the issues it raises, considerably reduces the stress for all involved.
The process of a clinical negligence action should enable you to:
- Access full medical records.
- Obtain an independent and unbiased medical expert's opinions on what happened from examining those records (from an obstetrician, paediatrician and, where appropriate, others) and the difference this has made.
- Establish whether or not there is a potential claim for negligence and, if so, the possibility of an award of compensation.
In the event that you do not get to the stage where you can establish a negligence claim, you should at least have an improved understanding of what may, and just as importantly, what may not have happened to cause your child's disability.
The process
Choose the right lawyer. You should look for:
- A practice that has a Community Legal Service (CLS) Specialist Quality Mark to enable it to conduct publicly funded clinical negligence work.
- It should be a practice that is already actively involved in pursuing cerebral palsy claims.
- There should be a solicitor within that practice who is either on the Law Society's Medical Negligence Panel or the AvMA Action Against Medical Accidents Referral Panel.
If in doubt, ask directly what their experience is in the field, how many cases they have dealt with, and the outcome.
Your solicitor should be able to advise you immediately on:
How long you have to bring a claim
You have effectively three years from the alleged accident or date of knowledge of that accident, but the three years do not start to run until the child reaches the age of 18. Therefore, theoretically, you have 21 years from birth to bring the claim to Court. However, it is preferable to start an investigation as early as possible.
Where the individual is has a significant intellectual impairment the limitation periods will not apply so that even if the potential claimant is over 21 yeas old it is worth enquiring.
How you will fund the claim
Your child is likely to be eligible for CLS funding (which used to be called Legal Aid) through the Legal Services Commission, which is subject to two criteria - merits and means. The Legal Services Commission must be satisfied that reasonable grounds exist for starting an investigation. The financial circumstances of the child are relevant and it should be noted that it is the child who is the applicant and, therefore, it is the child's means and not your means, which are assessed.
Due to the way the legislative process currently works, your solicitor may have to undertake a lot of preparatory work prior to legal aid being granted. You therefore may find yourself being asked for a small initial payment to cover some of these costs. Once public funding is granted, your solicitor will request copies of all the medical notes and records from the hospital, both obstetric (to do with the mother) and paediatric (to do with the child). In view of the fact that there is usually shared care between hospitals and General Practitioners, the GP records will also be required. At this point the records remain entirely confidential and are only shared with the expert witnesses who will be asked to provide reports on those records.
On receipt of the records they will be checked to ensure that they are complete. Once the records are in proper order, appropriate independent expert witnesses will be instructed to prepare full reports. Usually, instructions to produce reports will be given to an obstetrician, paediatrician and perhaps others involved such as a midwife, paediatric neurologist or neuroradiologist. The correct identification of an appropriate expert by the solicitor at an early stage is essential. If the experts report that the medical treatment given was in accordance with normal practice and was to an acceptable standard then there can be no claim.
However, by this stage a few uncertainties may have been addressed and in the event that parents or carers are unhappy with an initial report, a second opinion may be sought from an expert of the same specialism.
Public funding will initially be granted to cover costs in obtaining the records, seeking appropriate experts' reports on those records and, usually, a barrister's opinion. If it is the barrister's view that this investigation should proceed to a claim on the basis of the strength of the opinions expressed by the experts, then public funding would need to be extended so that it is available to proceed through the various stages to trial.
It is usual for a meeting to be held with the barrister, solicitor and experts to discuss and explain the case which parents will also attend.
Proof
Your case is to establish that the person handling your medical care did or failed to do something that was not in accordance with an accepted body of medical opinion. Medical staff are judged on the standards and medical knowledge prevailing at the time of the alleged incident.
It will also be necessary to show that the medical staff's negligence contributed significantly to the injury or injuries sustained as well as proving the degree of damage and impairment. It is also necessary to show that those injuries have no other known cause.
There are three distinct issues to be addressed in a clinical negligence action:
- Breach of duty i.e. the failure of care on the part of those people who have a duty to care to you.
- Causation i.e. the link between the breach of duty and the injuries sustained
- Quantum i.e. the level of compensation that should be awarded
Sometimes it is the case that breach of duty and causation are dealt with separately from compensation. This is known as a "split trial" where liability for breach of duty and causation are considered in one hearing and then, at a later stage, issues of damages or compensation are considered in greater depth. The reasons for this may be:
- that it may be inappropriate to rush to a conclusion on the amount of compensation when the child is still developing and his/her future needs and prognosis cannot be accurately assessed.
- when, despite the evidence being favourable, the defendants will not voluntarily admit liability and it may be seen as a waste of legal costs to investigate the level of damages before the right to them is ascertained.
- If a split trial on liability is successful it is possible to obtain an interim payment on account of damages so that a child's needs can be met whilst the full value of their claim is investigated.
Pre-action protocol
Since 1 January 2000 a claimant has to write a letter in a specified form to the defendants setting out full details of the claim. This will include details of the likely allegations and the rough value so as to identify the nature and extent of the claim. The defendant has a set time limit in which to respond to that letter of claim, and this protocol can lead to an early indication of the likely outcome of the litigation and possibly an early admission of liability.
Your solicitor will deal with this and advise on the response received.
How compensation is assessed
The amount of compensation awarded is intended to place the injured person in the position they would have been in had the accident not occurred. This is clearly impossible to achieve in someone whose injuries will affect him or her in every aspect of daily living for the rest of his or her life. The intention, however, is to ensure that person is able to exercise choice and has the financial resources to obtain the appropriate support and care that he or she will need.
In assessing the level of compensation, in relation to past care and associated costs, it is enormously helpful if parents or carers keep diaries because that will assist in quantifying the claim in relation to expenses already incurred. It is also sensible to fix into that diary any relevant receipts.
As far as future expenses are concerned, these are calculated following advice from a large range of experts including for example occupational therapists, physiotherapists, architects, accountants, employment consultants, rehabilitation consultants and others specific to the individual's need. A figure will be arrived at which is intended to address the full range of future expected needs.
In particular the amount awarded should reflect the following:
- The costs of putting in place an adequate care regime.
- The cost of providing appropriate accommodation and adapting that accommodation, both in terms of capital and annual cost.
- Loss of wages where employment potential is compromised.
- Aids and specialist equipment.
- Transport and mobility aids generally.
- Social and leisure pursuits.
(This list is not exhaustive and other factors can and will be considered in each and every case.)
The level of awards has steadily increased over the years. This is partly as a result of the realisation that a whole range of aspects need to be compensated whereas, in the past, there was perhaps a more naïve understanding of the full range and implications of an individual's disability. This is also partly as a result of the Court changing its views as to the likely income generated from invested funds.
What happens to the money awarded?
Money awarded in compensation will usually be held "in Court" until a child reaches 18. Thereafter, it can either be paid out of Court and will be under that person's control, probably with the assistance of a case manager or, alternatively, if that person is incapable of properly ordering his or her own affairs, the Court of Protection will administer.
There are various options in relation to the way that the money may be paid. Over recent years it has become more common to award part lump sum for immediate needs and part annual payments (periodical payments) which are made to the injured person and will result in a guaranteed, index-linked, tax free annual income for the rest of that person's life, however long that is. Such payments are usually made quarterly, six monthly or annually in advance.
Clinical negligence actions are, by their very nature, complex and lengthy but with the right legal support and backing from the network of experts that the right legal teams can provide, such investigations need not be as stressful as may be imagined.
Current issues: the civil justice reforms
The reforms to the civil legal system have now been in place for five years and are still evolving with an emphasis on less hostile and more client-focused solutions. Although the system remains adversarial, the intention is for there to be greater openness and more scope for negotiation and mediation as opposed to litigation.
This factsheet is for information purposes only and specialist legal advice should be sought.
Further information
AvMA Action Against Medical Accidents
Tel: 0845 123 2352 (Helpline)
Email: admin@avma.org.uk
Web: http://www.avma.org.uk/
Advice and information to people who feel they may be victims of a medical accident. Where appropriate, referral to a specialist solicitor.
Law Society
Tel: 020 7242 1222
0500 192939 - accident line
0870 606 2555 - information services
Web: http://www.solicitors-online.com/
Community Legal Service
Tel: 0845 345 4345
Fax: 020 7210 1050
Email: info@legalservices.gov.org.uk
Web: http://www.clsdirect.org.uk/
Ensures people can access information and advice about their legal rights. Has a website directory providing details of solicitors, advice agencies and information providers across England and Wales who hold the CLS Quality Mark.
This document is for information purposes only.
For more information about cerebral palsy and Scope services
Contact Scope Response for information, advice and support. Copies of all Scope's information sheets can be downloaded from the website or obtained from Scope Response.
Scope Response hours are:
Monday - Friday 9 am to 5 pm. Closed weekends and Bank Holidays.
Scope Response
PO Box 833
Milton Keynes
MK12 5NY
Tel: 0808 800 3333
Fax: 01908 321051
Email: response@scope.org.uk
Scope acknowledges the help and support of everyone who has been involved in the production of this information.
This information can be made available in other formats if required eg. large print or tape. We have information about Scope and cerebral palsy available in various languages on CD-ROM. We also offer a telephone interpreting service to people whose preferred language is not English.
Please contact Scope Response for more details of these services.
© We are happy for you to make photocopies of any part of this document. However, we would be grateful if you would attach an acknowledgement of the source to any copies.
