post

Complaints about Medical Treatment

If you are not satisfied with the medical treatment that you or a loved one has received, and have suffered an injury which you think could have been avoided, a first port of call for many will be to lodge a complaint. This informal approach for many can be enough to feel like your concerns have been answered.

 

NHS Hospitals

The hospital you would like to complain to will usually have a PALS (Patient Advice and Liaison Service) based in the hospital itself. Its role is to offer confidential advice and support on matters to do with the hospital – including helping filing a complaint.

Where possible it is best to make a written complaint, containing details of your complaint, giving dates where you can and summarising the most important points which you would like to raise and setting questions you would like answers to.

After you have submitted your complaint the hospital should be able to advise you on how long they will take to respond and how to escalate your complaint not happy with their response.

 

GP Surgeries, Dental Practices and Private Hospitals

Each GP Surgery, Dental Practice or Private Hospital may have their own bespoke complaints procedure for how they deal with patient complaints, but as a general rule, the best mode of contact would be to send a written summary of what has happened, providing a list of questions which you would like to be addressed and sending this for the attention of the practice manager/legal department.

 

Making a medical negligence claim

Complaints are not the same as medical negligence claims. Many people choose to pursue a complaint alongside a medical negligence claim, or may have already started the process when they start speaking to solicitors to investigate a medical negligence claim. An important distinction to make is with a complaint, there is no financial redress. You may be offered an apology or be updated to policy or procedural changes if applicable, but there is no guarantee.

 

Time limits

When making a complaint, you should aim to submit your complaint within 12 months of your injury. There are circumstances where you can submit a complaint after this time period, but there is no guarantee that the healthcare provider will be able to handle your complaint if this is the case.

 

The time limit for pursuing medical negligence claims is 3 years from the date of the injury suffered, or the date that you reasonably became aware that you may have suffered negligent harm. As the investigative process takes time, it is always best to be mindful of these time limits and start investigating as early as possible.

 

If you would like to discuss a potential medical negligence claim, please call 0151 645 0055 to speak to one of our specialists.

post

Although each case is investigated and looked into based on the individual experiences that you or your loved one has been through, in order to be successful in bringing a medical negligence claim, all claims have to fit within the structures of the law.

Breach of Duty

You will hear your lawyer talk about liability and whether there has been a ‘breach of duty’. In investigating your claim, we will need to prove, backed up with medical evidence, that the clinicians involved in your care breached their duty of care which they owe to all of their patients. Crucially though, it is not enough to simply say that we are not happy with their care generally; we have to be able to prove that the level of care which they provided, or the clinical decisions that they made, failed to meet the standard of a reasonable body of other practitioners in that area of medicine.

Causation

Furthermore, if we have established that there has potentially been a breach of duty in your care, to proceed further in our investigations, we have to then go on to show that there is what is referred to in legal terms as ‘causation’. By this, we mean to say that as a direct result of that breach of duty that we have proved with evidence has occurred, you have gone on to suffer harm or damage. Importantly, we have to show that if that breach of duty had not have happened, you would not have gone on to suffer the damage that you now have.

It is only when we have proved both of these components that we can look at sending our allegations to the Defendant and look into settlement negotiations.

Medical negligence cases are known for being complex, and it takes time to get to each stage of our investigations, from requesting and reviewing your medical records at the very beginning of your claim, through to instructing and obtaining independent expert medical evidence to look at proving breach of duty and causation, and evaluating the prospects of success in your claim at every stage. Generally, successful claims can take approximately 2-3 years, but this is all entirely dependent on the individual facts of the case – with some claims taking less time and others requiring more time.

Your lawyers will always try to keep you updated, and a member of the team will always try to and answer any questions or queries you have at every step of the way.

post

When awards of compensation are made, generally, it is an offer made up of 2 separate parts:

General Damages:
Put simply, general damages are a general assessment made by the courts for the overall pain and suffering you or your loved one has been through because of the injury suffered. These assessments are based on guidelines set out in law, which firstly looks at what kind of injury has been suffered, then it takes into account how severe the injury is, and also how long it has taken to recover – if at all. These guidelines serve as a kind of benchmark – but it is still essential for an experienced medical negligence specialist to firstly review medical records and obtain medical evidence before an accurate estimate can be made.

Special Damages:

Special damages are essentially paying back any expenses you have already incurred – or are likely to incur in the future, because of the injury suffered. This may include things like any private treatment or equipment that is now needed and it can cover things like loss of earnings due to extended periods of absence- which would not have been the case but for negligent treatment.

During the lifespan of your medical negligence investigation, your solicitor will talk you through how your claim is valued and what types of things come into the valuation of your claim. They may ask you to keep hold of any receipts or documents to help evidence these kinds of expenses for future reference.

The overall aim of compensation is to put an injured person back in the position they would have been in if the negligent treatment or care had not happened. Sometimes of course, when a permanent injury has been caused or when someone sadly has passed away, this cannot always happen. In cases such as these, expert evidence is often required to help look into what kind of losses can be quantified.

post

We appreciate that for most people, contacting and instructing solicitors is a daunting and scary task. Whilst we aim to make the investigation process as easy and comfortable as possible, we appreciate that it’s easy to get caught up in legal jargon and some of the tough legal concepts, so please find a simple breakdown of the initial stages we walk you through if you think you have a potential medical negligence claim:

  1. Your first call with us

When you leave us a message on our website, fill out our enquiry form, or call us on our landline directly, we will arrange for you to speak to one of our specialists as soon as possible, certainly within 1 working day. We will not send out an invoice or ask you to pay for this initial call we arrange with you.

We will ask you to talk us through what has happened, and we may ask you some more questions to gather some more information to help us determine whether we think we can help.

We will often ask questions such as –

– Who is the injured person? Has something happened to you or are you calling on behalf of a loved one?

If you’re calling for a family member, we will need to know what your relationship with them is – such as a mum calling on behalf of their young child. If you are calling on behalf of another adult who lives independently and normally manages their own affairs, we will usually need to arrange to speak to them at some point, to make sure they give their permission and make sure that they understand about their own claim. If your loved one has passed away, we will usually ask whether you are their personal representative under Probate or a Will.

It is essential that we confirm who is the correct person to bring the claim at this point.

– Where did this take place? We will need to know about which hospitals/GP Surgeries/Dental Practices/Health Centres are involved.

We need this information so that we can obtain all of the important records at the earliest opportunity to ensure our investigations can run quickly and smoothly.

When did this happen? There are time limits placed on individuals looking to bring clinical negligence claims, so we may ask you if you can remember dates and times that things happened to try and work out when this deadline may be.  It will also help us to build a timeline of events to assist us when considering the medical records and will be the basis for a witness statement.

– Why do you believe there has been negligence? To help us set out our advice and make certain that we are considering the matters that are most important, we will ask you to tell us why you think there may be a potential claim, and we will help breakdown the tests we need to prove, and whether this fits with the requirements the law puts on people looking to bring a claim.

At Graystons, we very much work as a team and this approach is regularly used when considering new cases.  The specialist you talk to may want to discuss your enquiry with the wider team before confirming advice to you, in which case they will aim to give you a call back that same day with our advice.

 

  1. Our initial advice

We will give you a call back to advise whether we think we are able to assist with your enquiry.

During this call we will explain the process of bringing a claim, what we need to be successful and discuss options for funding:

Duty of Care

The first test we need to show is that whoever provided care held a legal duty to do so – for doctors, nurses and healthcare professionals, this is taken as standard, so we usually don’t need to look into this in any great detail. We will usually just need to know where your treatment was and/or who provided that treatment.

Breach of Duty

To bring a medical negligence claim, we need to show that the standard of care that has been provided has fallen below a reasonable standard. It is not enough just to say that we are not happy with the care or treatment and think it could have been done differently, we need to be able to prove, eventually with medical evidence, that the care provided was so poor that a reasonable body of clinicians in that same field of medicine would agree that this should not have happened.

– Causation

‘Breach of duty’ is not enough to bring a claim, we also need to prove ‘Causation’. By this, we mean to say that as a direct result of that alleged poor care, you or your loved one has gone on to suffer additional harm or damage which could have been avoided if this poor care hadn’t have happened. We have to be able to show that the damage suffered is not just a natural progression of an existing condition or a recognised risk.

– Value

Taking into account all of the above, we then need to look at how much it would cost to investigate the claim versus how much the claim is worth in monetary terms. If we investigate and proceed to incurring costs such as having medical records sorted, commission medical expert reports, we need to be able to show to an insurer that the estimated value of a claim would outweigh the anticipated costs of investigating.

If we have considered the above tests and think that there is enough information to move on to the first steps in investigating, we will then discuss the funding options with you, and talk you through the claims process.

 

Please do give us a call on 0151 645 0055, or contact us via email – enquiries@graystons.co.uk and we will be happy to talk through any questions you might have.  

post

When an individual has suffered potentially negligent treatment, the law sets time limits which indiviudals need to abide by to investigate and issue court proceedings. This is to ensure that no person is prejudiced by evidence which could be more difficult to prove or disprove with the passage of time.

Individuals are permitted 3 years from the date on which they have suffered an injury in which to investigate and issue court proceedings. This could be the date surgery was carried out, the date of an incident like a heart attack happened, or the first day presenting at A&E with a problem and so on.

It’s often the case, however, that people only become aware that they may have suffered negligent treatment later on. For example, in cases involving diagnoses of a particular condition or malignancy, the date of the ‘injury’ isn’t clear, but a date will arise from the point the person was given a diagnosis, or a condition was confirmed to them during an appointment. This is known as a person’s ‘Date of Knowledge’ – in other words, the date on which an individual ought to have reasonably become aware that they may have suffered negligent harm or damage.

Example scenario:

An individual goes to A&E following a fall at home on 26/07/2021. The individual is told that there is soft tissue damage, and no action is taken. The individual then undergoes a scan 4 weeks later on 23/08/2021, which they were told confirmed a severe fracture which will need surgery to correct.

Whilst the ‘date of injury’ would be 26/07/2021, the individual only became aware they may have suffered potentially negligent harm on 23/08/2021. This individual has until 23/08/2024 in which to investigate a claim and start court proceedings.

Children and Incapacity

Where the individual who has suffered harm is a child, the time limit for investigating a claim will not start to run until they reach ‘majority, ’ i.e. become an adult, which in England and Wales is 18 years old. Children will have until their 21st birthday to issue court proceedings for an incident that happened to them when they were a child.

Where an individual has a condition which means they lack capacity to bring a claim themselves under The Mental Capacity Act 2005, the 3-year time limit for bringing a claim will not start to run until the date they regain their capacity. Sometimes, with some permanent brain injuries and other conditions, an individual may not ever ‘regain’ capacity.

Both children and people without capacity will need what is known as a ‘Litigation Friend’ to act as their representative. This could be a parent or guardian in the case of a child or the parent, spouse, child, or registered guardian of someone who can no longer manage their own affairs.

Death

For claims arising from the treatment a person received before they passed away, the 3-year time limit will start to run from the date of death in order to allow the personal representative (i.e. the appropriate person with Probate over the estate of that person) time to investigate a claim.

post

Sadly, in some case, the Claimant may pass away before their clinical negligence claim has finished or even begun, however their death does not have to conclude their claim. The Law Reform (Miscellaneous Provisions) Act) 1934 states that in most circumstances, the claim survives for the benefit of the Claimant’s Estate, however you only have 3 years from their death in which to commence court proceedings, so it is important that you contact a clinical negligence solicitor as soon as possible.

Who can act for the Estate depends upon whether the Claimant left a valid Will or not. A Will normally appoints Executives to act on behalf of the Estate and these would be the people legally entitled to continue with the claim. If the Claimant died intestate (they did not leave a valid Will) then someone can apply to be their Administrators and continue with the claim. Usually the Claimant’s spouse, adult children or parents can apply to be an Administrator.

In either case, you need to apply for probate which will either be a “grant of probate” if the Claimant left a valid Will, or “letters of administration” if the Claimant died intestate. You can apply for probate yourself or if you prefer, you can instruct and pay a probate solicitor to obtain probate on your behalf. If you decide to do this yourself, you can complete the probate forms online and then print and send these to your local probate registry (you may also have to pay a fee).  You will be able to find out more information at:- http://www.direct.gov.uk/en/Governmentcitizensandrights/Death/Preparation/DG_10029716 which will assist.

Whilst the Executives or Administrators are legally entitled to continue to provide instructions for the claim, any compensation will be distributed in line with the wishes of the Claimant as set out in their Will, or in line with the intestacy rules if there was no valid Will. The intestacy rules set out who can inherit from the Estate and first in line is usually the Claimant’s spouse, followed by the Claimant’s children.

Even though the Claimant is no longer living, a clinical negligence claim can still include an award for the Claimant’s pain, suffering and loss of amenity. It can also include any other types of loss that they would have recovered, had they survived. This might include losses of earnings, the cost of medical treatment, travel expenses and any care or equipment that they received during their lifetime.

The death of a Claimant may also give rise to a new claim under the Fatal Accidents Act 1976. If the Claimant’s death can be attributed to clinical negligence, the Claimant’s spouse or partner can claim a lump sum “bereavement award”, funeral costs and anyone who was financially dependent upon the Claimant or dependent upon services provided by the Claimant (e.g. childcare, gardening, DIY, etc) can also claim for these losses. The purpose of this part of the claim is to ensure that the Claimant’s family is not financially worse off following their death.

The way these claims are calculated can be complicated and requires specialist legal advice. If you are thinking of making a clinical negligence claim on behalf of a deceased relative, please contact Graystons Solicitors on 0151 645 0055 to discuss the matter further.

post

If we can successfully prove your claim, the Defendant will be asked to pay you compensation for any financial losses that you have suffered because of the negligence. Such losses are likely to include any loss of earnings, travel expenses, medical expenses, etc.

It may be that because of the negligence, you have been in receipt of state benefits such as Universal Credit or Disability Living Allowance, or that you have received NHS treatment for your injuries. If this is the case, the Government is entitled to recover from the Defendant any associated state benefits or the cost of any NHS treatment you have received because of the negligence. The principle is that the person that caused you harm, rather than the State, should be responsible for paying for these.

The Compensation Recovery Unit (CRU) is part of the Department of Work and Pensions (DWP) and was set up to ensure that any relevant state benefits and NHS treatment charges are repaid to the State, so that the Government is fairly compensated for benefits already paid to you and that you are not compensated twice for the same loss. They may only recover from the Defendant when your compensation includes money for: –

  • Loss of earnings, cost of care or loss of mobility; and
  • Corresponding benefits have been paid.

The following is a list of heads of compensation together with relevant benefits: –

Compensation for Loss of Earnings during the relevant period:

  • Disability Working Allowance
  • Disablement Pension payable under Section 103 of 1992 Act
  • Incapacity Benefit
  • Income Support
  • Invalidity Pension
  • Invalidity Allowance
  • Jobseeker’s Allowance
  • Reduced Earnings Allowance
  • Severe Disablement Allowance
  • Sickness Benefit
  • Unemployment Benefit
  • Unemployability Supplement

Compensation for Cost of Care during the relevant period:

  • Attendance Allowance
  • Care Component of Disability Living Allowance
  • Disablement Pension increase for Constant Attendance Allowance (Exceptionally Severe   Disablement Allowance)

Compensation for Loss of Mobility during the relevant period:

  • Mobility Allowance
  • Mobility Component of Disability Living Allowance

Every compensation claim must be reported to CRU and to do this, it will be necessary to provide some of your personal details such as your name, date of birth and National Insurance number. These details will help CRU in assessing their right to recover any benefits and calculating how much they expect to be repaid. CRU will then issue a “Certificate of Recoverable Benefits” which outlines the amount it expects to recover, and this amount will be taken from your compensation and paid straight to CRU by the Defendant.

As stated above, benefits can only be recovered on a ‘like for like’ basis; so, for example, benefits paid for loss of earnings can only be subtracted from the part of your compensation which represents lost earnings. If you do not recover compensation for lost earnings, then you do not have to pay those back, even if you do recover compensation for other things, such as your pain and injury.

post

In a medical negligence claim an opinion from an independent medical expert is almost always an imperative part of the investigation process. In order to assess the current condition and future prognosis of a Claimant it would normally be very unusual for an expert not to want to see the Claimant in person. As with so much that has happened in 2020, Covid has changed this.

A medical examination in respect of a medical negligence claim, in most cases, will no longer be deemed a necessity, in view of national guidance to minimise face to face appointments. Medical experts have guidance from the GMC (General Medical Council) that says while they must not place patients at risk of harm unnecessarily, if an examination is necessary face to face appointments are not prohibited. Claimants are regularly required to travel cross country for medico legal appointments. At these appointments they would be required to meet hospital staff and interact with the expert during the examination. In the current circumstances it would be difficult to argue that this is ‘necessary’. As a consequence, where possible, since March 2020 many medical experts are now seeing patients virtually with a video conference.

There are of course pros and cons to appointments occurring this way.

The pros:

  • No travel for expert or Claimant.
  • Waiting times for appointments can be shorter.

Experts have long waiting lists for appointments. Recently, in some cases waiting times for appointments are shorter as the expert isn’t having to travel and they are able to fit in more appointments and the waiting lists are shorter.

  • Reports are produced more quickly.

I understand that this is because the expert will consider the Claimant’s medical records in advance and is in a position to finalise a report immediately following the appointment where usually time wouldn’t allow.

  • Claimants who have moved abroad can have an appointment in the same timeframe as those who live in the UK.

When a face to face appointment is required a Claimant who is abroad can often wait much longer whilst they negotiate the logistics of travelling to the UK.

The cons:

  • In many cases a physical examination is still required.  For example, where subtleties of a joint injury need to be seen or an internal examination is required.
  • An expert will often assess the Claimants demeanour when they walk into their consulting room. This is no longer possible.

In my own practice the positives currently outweigh the negatives. Over the last few months I have found that both Claimants and experts are preferring the change and are pleased that they are not required to travel. The lack of examination has not been detrimental to cases and it is most appreciated that cases aren’t being stalled by the current Covid restrictions.  The subtleties that are not seen in a virtual appointment in most cases will not prevent progression of a case.

As a safeguard, in every report the expert confirms that the appointment took place virtually and there may need to be a face to face appointment further down the line. In other cases, virtual appointments just aren’t possible because of the nature of the injury.  Where it is necessary as soon as an appointment can be scheduled safely, we will arrange this.

We don’t want Claimant’s to have to wait any longer to conclude their case than is absolutely necessary, so we are pleased that in some cases virtual appointments have been possible.  At Graystons, we welcome change that benefits our clients.

If you are concerned with regard to attending a medico legal appointment whilst Covid restrictions are in place, please contact one of our specialist team and we will be happy to discuss your options.

post

If you are dissatisfied with the treatment that you or a family member has received from the NHS, you may wish to make a formal complaint before considering any legal action. The NHS Complaints Procedure applies to all NHS hospitals (and private hospitals if the care was under the NHS), Primary Care Trusts and any services provided for the NHS by GPs, Dentists, Opticians or Pharmacists.

The NHS Complaints Procedure is unlikely to achieve a substantial (if any) amount of compensation, but it can offer an explanation of what has happened to you, an apology and information about any changes to procedures to ensure such incidents do not occur again. Following the complaints procedure may also assist your solicitor if you are to proceed further with a potential claim.

Your complaint should be made as soon as possible but no later than 12 months after the event in question (or the date that you were first made aware of the issue). Whilst NHS organisations do have some discretion to consider a complaint made outside these time limits, this is not something to be relied upon.

Your complaint should be made in writing and addressed to the Chief Executive or Complaints Manager of the healthcare provider. You should include a chronology of events, the reason why you are complaining, any questions you have regarding your care and what result you want from the complaint – e.g. an apology, a review of the processes in place, etc

The healthcare provider must acknowledge your complaint within 3 working days. At this point they should offer you the opportunity to discuss your complaint with someone and advise you of the time frame within which you are likely to receive a formal response. If at any point there is likely to be a delay in providing your response, the healthcare provider should notify you in writing of the reason and the new time frame. Whilst there is no formal time limit for the NHS to investigate and respond to your complaint, the whole process should be discussed and agreed with you including any extensions. At the end of the investigation you should receive a formal written response.

If you are not satisfied with the response to your complaint, you can continue to try to resolve the complaint locally with the healthcare provider or you can request an Independent Review by the Health Service Ombudsman. You should make a request for an Independent Review within 12 months of receiving the care provider’s final written response to your complaint.

If you are still dissatisfied with the response to your complaint, please contact Grayston’s solicitors on 0151 645 0055  to see if we can assist you further.

post

Would it surprise you to know that it is not compulsory for private hospitals to have public liability insurance? When I brought a medical negligence claim against a private hospital that didn’t have public liability insurance I was astounded to know that there was no insurance and this wasn’t illegal. Surgeons and individual doctors are required to have insurance of their own but a private hospital generally is not. This means that if medical accidents happen and it can’t easily be associated with an individual you may not be able to recover compensation.

In a claim I dealt with the Claimant suffered injury due to a prescription error following surgery. The person who made the error was not easily identifiable from the records. The surgeon who performed the surgery was not at fault. The hospital went into administration and there was no public liability insurer. Through careful and tenacious investigation my team managed to locate the individual responsible for the error and subsequently located a union that provided cover for the claim. We had a successful outcome in locating a Defendant in that particular case but it took a lot of time which would have been avoidable if the hospital had have been properly insured. Something I think a patient should be able to expect a hospital to have.

Lobby groups including the Association of Personal Injury Lawyers are briefing MPs and calling for change. This has come to the forefront again following the collapse of Thomas Cook as they were self-insured and now can’t meet the liabilities of ongoing claims. It seems outrageous that in the 21st century private companies and in particular private hospitals aren’t required to have comprehensive insurance cover for medical accidents. Perhaps even more shocking is that patients aren’t aware.

We are experts in our field and every possible avenue will be investigated to locate a Defendant, an insurer or union that can meet the costs of a medical negligence claim. However, until the law changes, if you are considering treatment from a private healthcare provider, research the providers insurance cover before you commit to treatment. In the event that the worst happens make sure the hospital can cover its liabilities.

If you are concerned that you have suffered injury following treatment in a private hospital please contact us and one of our team will be happy to discuss the matter with you.