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Thousands of personal injury compensation claims are initiated every year in the United Kingdom by lawyers on behalf of people from all walks of life. A multitude of operations and clinical procedures are executed successfully however a small percentage do go wrong, laying the grounds for medical negligence solicitors to take legal action in order to claim compensation for personal injury. Both legal aid and the no win no fee* scheme are available to pursue medical compensation claims. Our solicitors operate the no win no fee* scheme otherwise known as a conditional fee agreement (CFA). No legal charge is payable to the medical negligence solicitor unless the legal case is won and the client obtains an award of compensation. In the event that the legal claim is lost there is no charge made to the client.

Medical Negligence

Healthcare practitioners, which include consultants, doctors, dentists, nurses and technicians are not judged by absolute standards but are compared to others in the same area of practice. A doctor will not be held to be negligent simply because treatment failed if a substantial body of other doctors would have acted in the same manner provided that the treatment offered was logical. Medical negligence solicitors acting on behalf of a claimant will attempt to prove that the treatment fell short of that offered by other qualified healthcare professionals working in the same area of medicine.

    Case Law - Bolam v Friern 1957

    This is the leading case in medical negligence law that sets out the rules for establishing and defining what is a 'reasonable standard of care' and is known as the 'Bolam test'. In a nutshell there will be no negligence if a doctor or other healthcare professional reaches the standard of a responsible body of medical opinion. To show negligence there are in fact four stages, all of which must be satisfied and the Bolam test is just one of them. It is necessary to show that there was a duty of care owed by the healthcare professional to the patient which is always the case in a doctor/patient relationship, that the duty of care has been breached by the standard of care falling below that which is acceptable (determined by the Bolam test), that the medical negligence caused the injury and that the injury was not to remote, in other words that it could be predicted. The practical effect of this case is that a doctor will not be found to be negligent if a substantial body of medical practitioners support the treatment given, even though it may have failed whereas other alternative treatment may have succeeded. This principle has been further modified following the case of 'Bolitho v City & Hackney Health Authority 1997' which entitles a judge to reject a defence to a claim for negligence on the basis that the treatment was 'logically indefensible' notwithstanding that a body of medical practitioners may have supported it. Therefore in order to provide a defence for alleged negligence the treatment must not only be supported by a body of the healthcare professional peers but must also be logical.

Compensation Awards

Surgery has the highest incidence of negligence whilst gynaecology and obstetrics account for almost half of all compensation claims. Damages awarded to a claimant includes pain and suffering, loss of income and the cost of personal care together with all manner of other reasonably incurred expenses. The value of pain and suffering is assessed by a judge with reference to the extent of the medical injury, the recovery time and whether or not there are any long term symptoms. In reaching a decision on the amount of compensation to award in a personal injury compensation claim, a judge will consider representations put forward by medical negligence solicitors acting on behalf of both the claimant and the defendant, based on awards in previously decided cases, tempered by government guidelines and previous personal experience as a practising solicitor or barrister.

Compensation for negligence is awarded in several categories which for the sake of convenience are divided into three main groups by medical negligence solicitors :-

    General Damages represents compensation for items that medical negligence solicitors can calculate with a degree of mathematical certainty by applying known figures and accurate projections for the future that do not rely in the main on assessment. These items are usually proven by production of invoices, estimates, books and records and include the following items :-

    • loss of past wages plus salary estimated in the future
    • loss and damage to personal property including vehicles
    • the cost of future care
    • medical expenses including mechanical equipment and property alterations
    • expenses incurred in running the claim

    Special Damages is compensation for items that cannot be calculated with accuracy. This means that these items must be assessed by a judge following representations put forward by medical negligence solicitors for both parties. The judge must make an estimation which is based on case law, personal experience in the courts and guidelines published by the 'Judicial Studies Board'. Items which may need assessment include :-

    • pain and suffering
    • loss of amenity and lifestyle
    • loss of opportunity on the job market

    Interest is calculated separately and differently for general damages and special damages. The figure calculated for interest is added on to the overall award.

Funding Legal Action

In addition to dealing with cases using the no win no fee* scheme our solicitors are also authorised for public funding using legal Aid which is available for a solicitor to pursue a medical negligence compensation claim. Public funding is means tested however only the applicants own assets and income are considered which means that in addition to eligible adults, almost all children will qualify. Only lawyers who are members of the Solicitors Regulation Authority specialist clinical negligence panel are allowed to represent clients using public funding which represents less than 1% of solicitors in practice in the UK. Most UK lawyers will also consider use of the no win no fee* scheme to pursue legal action however most medical negligence solicitors will expect the client to pay for disbursements and expenses as the claim proceeds whilst they cover the cost of the legal work necessarily expended. This means that no win no fee* compensation claims for clinical negligence are often not risk free.

There are a number of potential methods that can be used to fund a claim in the County Court or in the High Court including no win no fee, legal aid, before the event insurance, private finance and trades union funding. Legal aid is limited except for children and most cases are now dealt with using the no win no fee* scheme. Most trades unions now refer their members on to no win no fee* solicitors rather than risk funding compensation claims themselves. Before the event insurance (BTE) rarely covers a medical negligence compensation claim. Private funding is rare with most potential claimants choosing the no win no fee* scheme :-

    no win no fee*

    Most medical negligence solicitors operate the no win no fee* scheme however they will usually require that the claimant finances their own disbursements and expenses whilst the solicitor carries out the legal work without making any charge for their time except and unless the case is won. In those circumstances the losing third party will pay all of the claimants legal costs and will refund any expenses and disbursements paid out in advance by the claimant. The effect of this is that most no win no fee* medical negligence compensation claims are not totally risk free and the claimant may be at risk of losing any fees paid in advance for disbursements including medical records and consultants examination reports. Whilst most medical negligence claim solicitors could afford to pay all of the expenses they prefer their client to contribute in order that the claimant has a stake and thereby a serious interest in the outcome of the claim thus ensuring that the claimant is attentive and responsive to requests from their own solicitor in addition to deterring those who might consider making a frivolous or speculative claim.

    Legal Aid

    Those on a low income or in receipt of benefits may qualify for legal aid to investigate and take legal action in a potential claim. Nearly all children will qualify for legal aid with a nil financial contribution as the assessment process will consider only the child's personal income and assets (rather than the personal income and assets of the child's parents). Legal Aid funding is preferable as there is never any requirement for the claimant to contribute to expenses although there may be a requirement following the means test to make a contribution to the Legal Aid fund. In addition a Legally Aided claimant cannot generally have a costs order made against them whereas in no win no fee* litigation the claimant is well advised to insure against potential costs orders in the event that the case is lost.

    In most cases of a child who has suffered a birth injury caused by medical negligence including cerebral palsy, Erbs palsy and brachial plexus palsy, that child will qualify for public funding in the form of legal aid to take action for compensation with a nil contribution despite having parents with substantial assets and income. That is because in cases where the medical negligence claim is being brought on behalf of a child under the age of 18, the child is the applicant for legal aid and therefore only the child's assets and income, if any at all, is considered.

      Legal Services Commission

      The Legal Services Commission outlines the requirements for public funding applications. Legal Aid solicitors will where possible ensure your case complies with, and satisfies the conditions of acceptance. Some of these requirements are:

      • Cost-Benefit - There are particular parameters in place that dictate what ratio must exist between the expected legal costs of a claim and the estimated value of compensation.

      • Prospects of Success - Public funding is not typically available for claims in which the prospects of success are less than even. If the costs exceed the likely benefit this will also be the case. However where cases have good prospects funding is more likely.

      • Importance of the Case - The Legal Services Commission will sometimes make a judgement on whether or not the case is important. This is a measurements dictated in part by the importance of the situation to the outside 'reasonable man' and therefore not based on the passionate involvement of the particular person applying. Such judgements involve the estimated compensation level and the eventual consequences for the person applying should the application be denied.

    Before The Event (BTE) Insurance

    This is provided through certain household insurance policies. Owners of these policies should read the fine print to see if they are covered to take legal action to pursue a civil claim through the courts.

    Trades Unions

    These organisations may grant membership benefits to some claimants who are pursuing legal action before a civil court. Because the no win no fee* medical negligence scheme is commonly available, many trades unions have opted to take back this privilege from their members. It is however still worth enquiring as there are occasions when a trades union will agree to cover a member's expenses - as always in trades union matters discreet inquiries may help.

    Private Funding

    Some claimants may opt to privately fund their claim, however, if a claimant has done the rounds of solicitors using the no-win no-fee scheme and no solicitor wants to take the case, then this should be a warning that the claim will probably be rejected by the civil court.

After the Event Insurance

There is also another funding issue that must be considered and that is in regards to the potential for a case to be lost. This is not a problem for one of the funding categories as no costs awards can be made against a legally aided claimant however for a no win no fee* medical negligence claim and for the other funding categories there is always the risk that the case will be lost and an award of costs can be made against the claimant for the winning sides legal charges. This is resolved by the use of an 'after the event' insurance policy which covers the claimant against the potential liability for the defendants legal costs.

Time Limits - Limitation Act 1980

"Limitation Period" is a legal term which refers to the limits that are placed on the amount of time you have to bring a legal claim for damages. Exceptions to the general three-year limitation period do exist. Those exceptions are outlined below. In the vast majority of cases, however, you have only three years to either settle your claim or to issue proceedings in a court of law and if that time period expires, then you are forever barred from seeking compensation for your personal injury.

There are time limits for court action applicable in all personal injury negligence cases and in medical negligence solicitors compensation claims the basic limitation period for negligence is three years. This means that legal action for a financial award to compensate for personal injury and loss in a medical claim must be settled or proceedings must have been issued, in a court of law within three years of the negligent act that caused the injury or within three years of the injury first being discovered provided that the injured person acted with reasonable diligence when the symptoms first arose. This can mean that action may, on occasions be started many years after the medical incident, as time does not usually start running until there has been a positive diagnosis by a medical expert. There are exceptions to this general rule for those under the age of 18 years and for the mentally incapacitated. In addition judges have unfettered discretion which they rarely exercise. If you are uncertain about time limits you should take urgent advice from a qualified medical negligence solicitor. Failure to comply with the time limits may mean that the opportunity to claim compensation may be lost forever.

Three years may seem like a long time, and some victims are tempted to wait a year or more before seeking legal representation. However, because of the amount of investigating involved with bringing a successful claim, a solicitor needs at least a full 6 months before the expiration of the limitation period. In fact, 12 months is preferable. Yet another reason to act quickly is that most solicitors will not agree to provide representation on a no win no fee* basis unless they have had the opportunity to adequately investigate the case. We operate the no win no fee* scheme otherwise known as a conditional fee agreement

    Calculating the Three Year Period

    The three-year limitation period begins on the earliest possible date upon which the victim had the knowledge, or may have been reasonably expected to acquire the knowledge, that is necessary to bring a legal claim for compensation. The victim, then, must know three things before the limitation period begins running: the material facts, that their injury was serious enough to warrant a legal claim and the identity of the likely parties to the claim.

    In medical negligence cases, this rule means that the three-year period will not start to run until the victim discovers the problem, which can, in some cases, be decades after the medical treatment was obtained.

    Exceptions to the Three Year Rule

    Certain exceptions to the three-year rule exist, and when an exception applies to the case at hand, the time period may either be stopped or delayed. In addition to the exceptions outlined below, the court is also given considerable discretion to extend the time period in cases where exceptional circumstances exist. Note, however, that this is a rare occurrence, and it is unwise to rely on the possibility of an extension being granted by the court. The two main exceptions to the three-year rule are :-

      Minors & Infants - For children, the three-year period does not begin to run until the victim reaches the age of 18. In these cases, the period will expire on the eve of the victim's 21st birthday

      Mental Incapacity - For people with a severe mental incapacity, the three-year period may never begin to run. Note, however, that the three-year period may start to run if the victim's mental capacity returns.

Medical Negligence Solicitors Legal Advice

Most specialist medical negligence solicitors will give very substantive free advice to establish whether or not you may have a claim that is worth pursuing. If a solicitor won't give free advice or limits it to a half hour then just move on to a solicitor who will. The fact is that a successful medical claim can be worth tens of thousands of pounds in legal fees to a lawyer, paid by the losing side or their insurers and there are many times when a solicitor just has to make those initial enquiries on a free, pro bono basis if he wants to find the viable claims. Don't rely on what you read here or on other websites when you can get free qualified advice for the cost of a phone call.



*Legal Information

The author of the substantive medical writing on this website is Dr. Christine Traxler MD whose biography can be read here