MEDICAL NEGLIGENCE LITIGATION 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 a solicitors office for advice on the viability of their 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. 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 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.
COMPENSATION HELPLINE 0845 177 0929
Types of Compensation
Compensation awarded in successful medical negligence cases falls into one of two categories: general damages and special damages :-
- General Damages cover losses that are not as easy to quantify because there is no medical bill or lost income to refer to in coming up with the award. Rather, General Damages include things such as pain and suffering the victim has experienced and will continue to experience as a result of their injury. Courts calculate the amount of General Damages to be awarded in a given case by considering awards made in previous cases as well as by referring to the guidelines set out in the government publication called “The Judicial Studies Guidelines.”
- Special Damages are awarded as compensation for the victim’s economic losses, both those which have already been incurred and those estimated to be incurred in the future. Special Damages include :-
- Lost wages
- Loss of future income
- Medical bills, both past and future
- Ongoing care, both past and future
- Prescription medications
- Gratuitous assistance
- Loss of amenities
- Reduced employment prospects
- Expenses related to bringing the claim
Note also that interest may be added to the award for both general and special damages.
COMPENSATION HELPLINE 0845 177 0929
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
COMPENSATION HELPLINE 0845 177 0929
Limitation Period and Exceptions
In the majority of cases, medical negligence claims must be brought within three years of the date upon which the injury was incurred. Unless one of the exceptions outlined below applies, this time limitation means that medical negligence claims are barred if they are not brought within three years of the incident. The exceptions to this rule are :-
If the injured person is under the age of 18, the three-year period does not begin to run until their 18th birthday.
Often the three-year period never begins to run in cases where the injured person suffers from a mental incapacity, which means that a medical negligence claim can be brought at any time during the person’s life.
In legal claims for clinical negligence, the limitation period does not begin to run until the date when the injury was discovered, which means that the period may not start until many years after the act of negligence was committed.
The courts are given wide discretion to extend the time period in exceptional circumstances. It is rare, however, for a judge to do so.