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If someone close to you has suffered the consequences of a medical error whilst not only being emotionally and psychologically damaging it can have serious financial consequences and in the worst cases result in the shortening of life expectancy or death. Individuals who are the victims of clinical errors are protected by the law and can instruct an injury compensation solicitor to claim for pain and suffering and for any losses or expenses that have been sustained.

The NHS is the target of thousands of medical negligence compensation claims every month. Overall current liability of the NHS for clinical errors is estimated to be greater than £5 billion. These claims are the result of poor occupational practices of healthcare professionals including nurses, technicians, doctors and consultants arising in clinics, hospitals and healthcare trusts.

Medical Negligence Compensation Awards

Medical negligence compensation is payable as a result of the failure of a health care provider to treat and care for a patient with a reasonable degree of skill and care which results in injury. If a healthcare professional was careless, lacked proper skills or disregarded established rules there may be a liability to pay damages. Insurers are generally the entities that have to pay medical negligence compensation which for the sake of convenience injury compensation solicitors divide damages awards into two categories known as General Damages and Special Damages. Personal injury compensation is intended to put the injured party back into the position that they would have been in if the accident had not happened. Money can never compensate for physical injury or death however the main items of compensation are as follows :-

    General damages

    General damages represent items which cannot be calculated precisely and usually have to be assessed. The main item of general damages is usually the compensation for the injury itself including pain and suffering. Damages for pain and suffering are normally established following review of medical reports obtained specially for the purpose and thereafter considering the guidelines set out by 'The Judicial Studies Board' and previous awards of compensation made in earlier cases. Other items in this category include loss of the enjoyment of life, disadvantage on the open labour market, loss of congenial employment if a less than satisfactory new job has to be taken and any loss or change of lifestyle compared to that which was previously enjoyed. The market leading multi-volume book entitled "the Quantum of Damages" by Kemp & Kemp aims to help solicitors estimate relatively accurately the amount of general damages for pain and suffering that could be awarded in a medical negligence compensation claim. Referring to this volume should make the process of computing general damages much easier for both the injury compensation solicitor and the injured party. Interest which can be claimed on general damages awards runs from the date of service of legal proceedings.

    Special damages

    Special damages represent compensation for items that can be computed precisely (such as loss of past and present wages and damage to personal property.) Most items that fall under this category can be proved by written evidence such as paperwork or estimates that may need little or no recourse to judicial evaluation. Future anticipated losses can also be claimed. Interest from the date of the accident will be applied to the final award. The losses that can beclai8med by an injury compensation solicitor may include:-

    • loss of earnings
    • assistance for household chores
    • care and assistance
    • general expenses
    • medical costs
    • traveling expenses
    • prescription charges
    • aids and equipment
    • adapted accommodation and transport

Repaying State Benefits

If any State Benefits have been claimed as a result of the injury, then the amount of those benefits may be deducted from the total amount of damages awarded. The compensation claim effectively includes the amount of money paid out from these benefits, so the victim does not suffer a financial loss because the benefits have to be repaid. The benefits which may be repayable to the DSS include :-

  • Disability Working Allowance
  • Disablement Pension
  • Severe Disablement Allowance
  • Unemployability Supplement
  • Incapacity Benefit
  • Invalidity Pension
  • Invalidity Allowance
  • Income Support
  • Reduced Earnings Allowance
  • Job seeker's Allowance
  • Unemployment Benefit
  • Sickness Benefit
  • Statutory Sick Pay

Medical Negligence Claim Procedure

Medical negligence litigation procedure is regulated by protocols and rules that all parties must follow. The first step is for the potential claimant to visit an injury compensation solicitor for advice on the viability of their medical negligence claim. This may not always be readily available until such time as preliminary investigations are completed. The solicitor may at that point advise the client to make a formal complaint to the NHS trust, GP or other health care provider on the basis that their written replies may provide evidence to assist in the pursuit of a subsequent civil claim for medical negligence compensation. Assuming that the matter remains unresolved the solicitor will investigate the potential claim and carry out a risk analysis and thereafter consideration will be given to funding the claim which is most often carried out using legal aid or the no win no fee* scheme. We operate the no win no fee* scheme otherwise known as a conditional fee agreement. No legal charge is payable 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. In either case the client may be expected to make a financial contribution except in the case of legal action by children. Once funding issues are resolved the solicitor will follow standard medical negligence litigation procedure and obtain copies of all medical records that are available by application to the healthcare provider. Failing voluntary production the solicitor will make application for a court order to force the potential defendant (or any other party that may hold relevant records) to produce documents. Once the records are available the injury compensation solicitor will consider them and thereafter appoint a medical consultant to report on the issues relating to the alleged medical negligence and subsequent personal injury. On the basis that the consultants medical report supports the potential claimant, a court summons will be issued which will most likely be defended by the insurers for the healthcare providers. If the allegations are admitted the matter will proceed to damages assessment before a judge, in the absence of voluntary agreement on the amount payable to the claimant. If the matter is defended the courts medical negligence litigation procedure will take precedence and after further medical reports and exchanges of documents the matter will come to trial before a judge with the requirement of the attendance of all parties including the claimant and the defendant together will all relevant expert witnesses, if their reports have not been agreed in advance. The judge will hear all of the evidence and may either dismiss the claim or find in favour of the claimant before adjourning for a further day in court for assessment of damages and costs.



*Legal Information

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