Why sharing what has happened to you and your family could transform your lives
PUBLISHED: 15:05 11 June 2018 | UPDATED: 11:16 06 November 2018
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How claiming compensation for medical negligence starts with a phone call.
A couple who’d coped as best they could with their disabled child now have peace of mind that he has enough cash to cover the cost of his care, specialist equipment and therapies for the rest of his life.
He was awarded compensation as an adult, decades after medical negligence at his birth led to extensive disabilities.
His parents had looked after him without considering taking legal action until they reached middle age and began to worry for their adult child’s future and what would happen to him when they became unable to look after him.
Sandra Patton, Head of Medical Injury at East Anglia based Ashtons Legal, said families put the needs, including the future needs, of their child first when considering asking medical negligence lawyers to investigate injuries caused during pregnancy, labour or birth.
Sandra said families unsure where to begin to investigate possible medical negligence need to start with a trustworthy specialist lawyer.
“Contact them. Tell your story and they can then investigate a claim.”
“The lawyer has to prove that the patient has been negligently treated and has to show that their injury is as a result of a failure of care,” she said.
She explained that medical experts in the same clinical field as the medical team involved with the patient are instructed to report on the standard of care given. They effectively have to put themselves in the shoes of the medical professionals and decide if there was a failure of care.
Medical negligence can cover every area of the body, she said, from surgery for knee and hip replacements that have had poor outcomes, to brain injuries caused at birth.
“If looking at a birth injury case, for example, one of the recurring themes is whether there was an indication before birth that the baby was in difficulty and should have been delivered earlier to avoid injury,” she explained.
“This will often involve an expert midwife looking at the CTG traces and everything that was happening at the time and answering the question ‘In all the circumstances, did the care fall below a competent standard?
“If it did, other experts will then advise whether that failure of care caused the brain injury.”
If this is proven in court or accepted by the hospital, the next step is to assess the amount of compensation.
She stresses that proving medical negligence and assessing compensation can take a considerable period of time, with birth injuries, for example, possibly taking two to three years before it is known whether the child will be entitled to be compensated for their injuries.
Information and evidence will need to be gathered from several sources and then medical professionals will be instructed to analyse all the information and advise on whether there has been negligent care. A hospital or trust may admit negligence, or the case may need to be proven in court.
Once it is established that there is an entitlement to compensation, assessing the right amount of compensation will also take time. The assessment has to consider the past, current and the future needs of the individual.
“It is the skill of identifying the needs and then translating those into money,” said Sandra.
Sandra said medical negligence can also involve criminal proceedings, where medical care falls to a grossly unacceptable standard or deliberate harm is inflicted, but this is extremely rare and normally it is a civil matter.
There is a time limit on issuing court proceedings in a medical negligence of 3 years, but this does not apply where the patient does not have the mental capacity to manage their own affairs or litigation, hence the family of the adult child being able to claim compensation decades after the negligence which caused his injuries occurred.
His compensation enabled the family to move to a single storey home, for him to have a care team so his parents could be parents rather than full-time carers, and to pay for equipment, therapies and all the other things he needs as a result of his brain injury to help maintain his health and to live as fulfilling a life as possible.
“Parents who go through this process would not choose to do so, but they do it for their child, to help secure their future because the child cannot do it for themselves,” said Sandra.
When choosing a lawyer to investigate medical negligence, choose a specialist, said Sandra.
“The hospital will instruct specialist lawyers who know what they are doing, your lawyer has to be able to at least match the talents of the lawyers on the other side,” she added.
Birth injury cases can be covered by legal aid whereas other cases are usually funded on a ‘no win-no fee’ basis.
Thanks to Sandra Patton, Head of Medical Injury at Ashtons for the legal advice in this article. Ashtons Legal offers a full range of legal services to businesses and individuals throughout East Anglia.
Call 0333 222 0350