The process of clinical negligence litigation offers an opportunity to patients, and their families, affected by a medical accident or poor medical care to seek answers and redress for avoidable injury caused as a direct result. In a clinical negligence claim, that redress is monetary compensation. The thought of pursuing a legal claim against the NHS is undoubtedly a contentious issue but it is important to consider that the impact on a person affected by clinical negligence can be huge. The objective of a claim is to obtain compensation in order to put the injured person in the financial position they would have been in had the injury not occurred and to compensate for the unnecessary injury sustained.
The compensation awarded is made up of losses incurred as a direct result of the negligence. Here we explore the types of losses that can be suffered by an injured patient and why it is so important that the people that are injured, through no fault of their own, have access to justice and appropriate compensation.
We should start by saying that in order to succeed in obtaining compensation the injured party, known as the claimant, needs to prove that the care and treatment given was negligent and that they suffered injury as a result of that negligence. If those elements are proved, the Court will then assess the compensation appropriate for the injury caused and the losses and expenses consequent upon that injury.
The amount of compensation, known as damages, awarded will be dependent on the severity of the injury. General damages are awarded for pain, suffering and loss of amenity. They will be quantified with reference to the medical evidence and referring to similar cases in which compensation has been awarded. Special damages refer to the financial losses and expenses incurred. Where the injury involves continuing disability and restrictions on day to day tasks the biggest part of the claim will be for future losses. It is important to be mindful of ensuring not only that the claimant’s needs are met currently but also for the rest of their life. The way that is done is by instructing expert witnesses in the key areas such as care and case management, occupational therapy, physiotherapy and rehabilitation.
Heads of damages can include the following:-
Care and assistance
In most cases the injured person will require some additional care and assistance over and above the level that they would otherwise have needed. Often that care is provided by family members free of charge. This is called gratuitous care. The cost of this past care can be claimed with a discount applied to reflect the fact that the care would have been given by family or friends in any event.
In cases in which the injury is severe and ongoing, such as a child born with a brain injury, additional care is likely to be needed for the rest of their life. The cost of that care is recoverable and will be calculated as anticipated by an independent expert. It may be appropriate in these types of case, for the damages to be paid periodically (perhaps annually) to take into account that their needs will change as the Claimant becomes older.
Medical care and expenses
Claims can be made for past and future medical care and expenses and can include the cost of over the counter painkillers as well as more complex full care packages that are likely to include occupational therapy, physiotherapy, speech and language therapy and educational psychology.
While claimants may be able to access a range of services through statutory providers, funding constraints and the high demand for these services can mean:
- Claimants almost always receive much less input than they need in terms of both care and therapy.
- A systemic approach is unlikely to be possible—there is no common and consistent thread pulling the provision together.
- The provision is not joined up, i.e. it lacks the multidisciplinary dimension in that it is not co-ordinated by a brain injury case manager. Consequently, therapists will not be working towards common goals and will rarely have the opportunity to meet and consider progress. For example, a child with severe cerebral palsy may have only limited sessions of physiotherapy and occupational therapy (OT) and there will be no one single person setting goals, ensuring that everyone knows what everyone else is doing and working towards those goals
- The environment in which the therapy is delivered may not be appropriate and may undermine the work that is being done, for example after an OT session where a claimant is supported to undertake some activities of daily living like cooking, it may well be that the kitchen they return to at home is not adapted and the specialist equipment not available to enable them to practise these skills at home.
- Parents of brain injured children may struggle to secure adequate support for their children at school
Loss of earnings and pension loss
Often an injury will result in time off work and the loss of earnings can be claimed. In the most severe cases, the negligent treatment may mean the claimant may not be able to work for the rest of their life or that they will be significantly restricted in what they can do and, therefore, what they can earn. They can claim the difference between what they would have been likely to earn but for the negligence compared to what their earning capability is now. This can also result in pension loss.
Aids and equipment
The cost of past and future aids and equipment can be sought. In some cases this may include items such as; mobility aids, educational tools, exercise equipment and alterations to cars. Information technology is also a growing source of assistance. These issues are often dealt with by experts in occupational therapy, rehabilitation and nursing.
There may be additional travel costs associated with attending various medical appointments and these travel costs can be claimed.
An accident may affect a claimant’s accommodation needs in several ways. Adaptation of existing or future accommodation may be required. This can range from the installation of handrails and wheelchair ramps to structural adaptations such as the provision of a downstairs toilet or widening doors. There may also be additional running costs and in serious cases the injuries may justify rehousing in more suitable accommodation.
The claimant may be able to claim the difference between the cost of the same type of holiday they would have enjoyed before their injury and the increased cost of the holiday they now need to take due to their complex needs. For example, the claimant may now need larger, single-level accommodation, increased vehicle hire costs, and a higher insurance premium. In addition, there may be associated costs for having to have a carer accompany them.
The above is an outline of the heads of damage that can be included in a claim for medical negligence and gives a small insight into the financial costs involved for the people affected. Without compensation for such it has to be considered how injured people would cope with day to day life and what quality of life they would have.
Based in Colchester and Clacton, Essex, Thompson Smith and Puxon provide Medical Negligence Claims advice across East Anglia. The team are experienced in handling medical claims from birth injury to misdiagnosis and treatment delay.
If you think you may have been the victim of a medical accident and would like to find out more please do contact the team on 01206 574431 or by email at firstname.lastname@example.org to find out more about how we can help you with your claim.