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.
October 2020 has seen a landmark decision that medical negligence solicitors have been waiting for. Accommodation claims have been stalled because the old, tried and tested way to calculate those claims wasn’t working anymore and the lawyers on all sides couldn’t find a way that everyone could agree on. The case of Swift v Carpenter has broken the deadlock and the decision for future accommodation claims has been made by the judges in the Court or Appeal.
Accommodation claims are a complicated problem, probably the most complicated part of valuing a medical negligence claim. The issue is that the Defendant won’t agree to an award for the whole cost of a property because over the years the Claimant is living in the accommodation the price of the property will increase and they will effectively get a windfall over time due to that increase in value. The court has agreed that this isn’t fair and looked for a way to calculate accommodation claims that didn’t give the Claimant the windfall of the increase in property prices.
In 1989 the Court of Appeal in the case of Roberts v Johnstone resolved the accommodation issue which worked for nearly 30 years. The way that this calculation was done relied on a positive discount rate which, at the time the decision was made, was 2.5%. The discount rate is a percentage used to adjust the lump sum awards for a Claimant’s future losses to account for the amount they can expect to earn by investing. The amount awarded wasn’t what the Claimant needed there and then but it was expected that they would borrow from other heads of loss such as general damages or past care, either of which wouldn’t take anything from the Claimant’s immediate needs going forward. In time inflation and property price increases would return the amount borrowed.
In 2017 the status quo was disrupted when the discount rate was changed to a minus figure (-0.75%).At the time interest rates were terrible and when money was invested the return was poor. The change in the discount rate then corrected the loss Claimant’s would suffer when they invested their compensation for future loss of earnings or care. However, when calculating accommodation claims a negative discount rate produced a minus figure giving the Claimant nothing for a property purchase. Obviously everyone agreed this wasn’t right but it took more than 3 years before the court could intervene and make a decision as to how accommodation claims should be calculated.
Lots of possibilities for the calculation were considered and we were left guessing what would be chosen. The court has now decided that deducting the “reversionary interest” would be the most fair and reasonable way. A reversionary interest refers to the increase in value of the property during the Claimant’s lifetime or the income that will be generated from the property. This is calculated by using the current market value, the number of years the Claimant is expected to live and an expected increase in value of 5% over time. This increase is then deducted from the current value. The final figure is the amount the Claimant is awarded now.
The Court of Appeal have said this new way of calculating claims should be lasting no matter the changes in interest rates or markets. It is hoped that the complications will be reduced and the Claimant will have more certainty as to what can be achieved. As with all new changes to the law this remains to be seen. For now the deadlock is broken and the backlog caused by waiting for a consensus can be cleared.
If you have suffered life changing injuries that may have resulted from medical negligence please contact us. One of our specialist solicitors would be happy to assist you.
On 06 October 2020 it became law that cohabitees could claim a bereavement award following the death of their loved one as a consequence of medical negligence.
A bereavement award is a type of compensation that has been set down in law to acknowledge the bereavement suffered by certain family members after a death caused by negligence. Since May 2020 this award is set at £15,120.
Before October 2020 only a spouse, civil partners or parents of a child under 18 were accepted in law as bereaved and allowed to claim the award. This limit has been clearly unfair for years. Relationships have changed in the 21st century and the longevity of a partnership is not always defined by a marriage or civil partnership certificate. Couples live together without being legally bound for years, sharing every aspect of their life including children and homes. Yet the law did not acknowledge these relationships in claims in negligence when one half of that partnerships passed away.
Finally, in 2017 the Court of Appeal acknowledged that not allowing cohabitees to be part of the group allowed to claim a bereavement award was against the European Convention on Human Rights (Jacqueline Smith v Lancashire Teaching Hospital NHS Foundation Trust and Others in 2017). It took 3 years from the date of this case before the statute books were changed but now in the case of cohabitees at least, things are fairer. As long as a Claimant can prove that they lived with their partner for the 2 years immediately prior to their death it doesn’t matter anymore whether they were married or in a civil partnership.
If you have lost someone you love and are concerned that it may have been a consequence of medical negligence contact us. One of our specialist solicitors will be happy to discuss your concerns.
Every time a medical negligence solicitor assesses the risk of bringing a claim limitation is at the front of their mind. Why? Because if a claim has gone beyond the usual 3 year limitation period the chance of success diminishes considerably and there are only very very limited ways that the claim may still be allowed to be brought before a court.
The usual rule of limitation is that you have 3 years to bring a claim from the date you knew or ought to have known that negligence occurred. Be aware that rules are different in the case of someone who has passed away; a child or someone who lacks mental capacity. We solicitors get very excited about the “ought to have known” part and spend a lot of our time assessing when that should be.
Firstly, we think about the date when the negligence occurred. For example, a patient goes to the hospital with a sore foot after a fall; they are given an X-ray and a doctor looks at that X-ray before sending them home, telling the patient they have a sprain when in fact the X-ray showed a severe fracture that needed surgery. The doctor missed a fracture on that day so that is the day the negligence occurred.
However, the date that the patient knew negligence occurred was later because when they got sent home they thought they had a sprain. Using this example the patient continued to soldier on for 3 months until they went back for another X-ray. This time they were told they had in fact suffered a fracture when they attended 3 months earlier. This is the day that the patient had knowledge of the negligence and this will be the day the solicitor assesses that the limitation period starts.
If you miss the 3 year period your claim will be “statute barred” which means that you no longer have the right to bring a claim. The court has power to allow a claim where limitation has passed to continue (when an application is made under section 33 of The Limitation Act 1980) but the powers to do this are very limited. A judge only allows a claim to continue in exceptional circumstances and the Claimant has to make a case as to why it should be allowed.
To avoid the pitfalls of limitation the best advice is to approach a solicitor as soon as possible after you become aware that you potentially have a claim in medical negligence. An awful lot of work is needed to investigate a claim and the more time your solicitor has the better.
If you think you may have been injured as a consequence of medical negligence call us and we would be happy to discuss it with you.
- someone who has passed away (3 years from date of death or 3 years from the personal representatives date of knowledge);
- a child (3 years following their 18th birthday or 3 years following their death) or
- someone who lacks mental capacity under The Mental Capacity Act 1983 (3 years from the date that capacity is regained or 3 years from their death if capacity is never gained or regained within their lifetime)
Graystons are pleased to announce that we have been accepted by the Amputation Foundation as a specialist firm that they are happy to recommend to those that need legal help.
The Foundation is a registered charity that offers help and information to amputees; including information about benefits, legal support, advice about the prosthetic centre and assistance with education and retraining. In addition, the Foundation supports medical professionals to help ensure new amputees are guided through rehabilitation and supported in dealing with their new situation.
We are happy to endorse Andy and Stephen’s work and that of their associates and look forward to working with the Foundation in the future.
The bereavement award for fatal accidents has been increased to £15,210.00 for the death of a spouse, civil partner or child under the age of 18, where the death occurred after 1st May 2020. Fatal accidents can include death caused by negligent medical treatment.
It is always difficult to lose a loved one but particularly so, where they have been lost unexpectedly because treatment has gone wrong. We understand that whilst no amount of money can bring them back, losing them may have left you in financial difficulties and compensation such as the bereavement award may go some way to reducing that hardship.
If you have concerns that your loved one may have received incorrect treatment, contact Graystons and one of our specialist clinical negligence lawyers can guide you through your options, including no win, no fee funding.
During these uncertain times, please be assured that Graystons Solicitors are working hard to maintain continuity and progression of your medical negligence claim.
Your Team are contactable directly by email and we are always only a phone call away on 0151 645 0055. If you have concerns regarding yours or a loved one’s treatment for Covid-19, we are aware that this is a continually evolving situation; however, a member of Graystons would be happy to discuss these with you. Whilst we cannot be certain that there will be a viable claim for clinical negligence or assist with ongoing treatment, we can offer advice, support or assistance to point you in the right direction for further help.
We hope you stay safe and well during this time.
One of the questions most frequently asked by families who have been the victim of medical negligence is “Can I bring a claim on behalf of my child?”
The simple answer is yes, provided you are the child’s parent or legal guardian. As a general rule they have longer to bring the claim, with the deadline usually being their 21st birthday.
Due to the child being unable to act in their own capacity until the age of 18, you will need to act as their Litigation Friend. If the claim is successful, the settlement will be approved by the court as an extra safeguard to make sure that it is appropriate. The compensation will then be held on Trust and invested on behalf of your child until they reach their 18th birthday.
There are several methods of funding available for claims involving children, including no win, no fee agreements and our specialist Personal Injury Solicitors can advise you further in this regard.
Distraught parents of a baby who died after suffering brain damage during his breech birth are left with unanswered questions about their son’s care. Baby Albert died as a result of hypoxic-ischemia brain injuries sustained during or slightly before his unplanned emergency breech birth at home in June 2018. An inquest heard evidence from the family regarding their concerns over the decision making by the medics and midwives at Queen Alexandra Hospital in Portsmouth.
At Graystons we are experienced in supporting families through the inquest process and in obtaining answers about their loved ones’ medical care. We can also advise you about the complaints procedure and any potential claim that arises, along with possible funding of that claim, either via legal aid, which may be available, or through a No Win No Fee Agreement. Please contact one of our specialist solicitors for a no obligation, free consultation for further information 0151 645 0055.
When bringing a clinical negligence claim, lawyers must not only assess the strength of the case in legal terms but also consider the potential value of your claim. This is not a straightforward task and but there are guidelines to assist with this.
Compensation, or ‘damages’, is generally split into two parts; Special Damages which include the likes of loss of earnings, care and assistance or funeral expenses and General Damages which are to compensate you for the pain, suffering and loss of amenity experienced.
Assessing General Damages is usually the most difficult, however, lawyers are able to refer to previous case law for examples and also the Judicial College Guidelines. These guidelines, also used by the Courts, detail ranges of compensation for various types of injuries ranging from a broken leg to psychiatric injuries and are a very useful tool to valuing how much compensation a claimant may be entitled to.
If you feel that you may have suffered from clinical negligence and have a claim for compensation, one of our specialist clinical negligence lawyers would be happy to speak with you and advise you on your options. We will talk you through your options, including how to fund a case and the possibility of a no win no fee arrangement (conditional fee agreement or CFA).