How do you finance your claim?

Clinical negligence claims are not only often longer and more complex than most other personal injury claims, they also tend to be much more expensive. This is due, in the main, to the number of medical experts who might have to be employed in order to provide the evidence needed to build a successful case. This is because, whilst the principles of clinical negligence might be the same as those applied in all personal injury cases, these principles are being applied against a backdrop of medical facts which are open to sometimes seemingly endless interpretation.

A successful clinical negligence claim, for example, will require proving that the treatment received by the claimant fell below a certain standard. This, the simplest part of the process, can still be extremely complicated as it is based upon legal frameworks known as the Bolam Test and the Bolitho Test. Both of these tests have been examined in greater length elsewhere on the site, but suffice it to say that the Bolam Test is based upon determining whether other medical practitioners would have taken the same steps and performed the same actions as the defendant (finding, if the broad answer is ‘yes’, that the defendant has not been negligent), whilst the Bolitho test extends the definition further, examining the logic and reasoning behind the treatment as well as its common acceptance, and looking at whether other courses of action would have represented avoiding negligence.

DID YOU KNOW: Legal Aid is no longer available for the majority of clinical negligence cases.

Once the presence of neglect has been established, a claimant (or more accurately their representatives) will then have to demonstrate that this neglect, rather than an underlying condition or any other factor, was the direct cause of the claimants injury or ill health. Experts, equally well qualified, might offer genuinely held but utterly opposed viewpoints of this ‘causation’. Once this causal link is accepted by the court, the degree of injury directly caused by neglect must be established, followed by arguments over the amount of compensation needed to cover aspects such as ongoing care and loss of future earnings. These last arguments, in particular, can often take years, a reflection of the fact that the most severe and life-changing cases of neglect can lead to compensation pay outs in the millions.

It should be pointed out, of course, that the vast majority of clinical negligence cases never go to court. The NHS Litigation Authority, which represents the NHS when claims of negligence are made against it, has published figures showing that only 2% of cases ever get as far as court, with most being settled before or dropped by the claimant.

In the majority of cases, if your solicitor feels that you have a genuine claim to have been the victim of medical neglect, just the threat of action will be enough to persuade the defendant to admit liability and offer a settlement. The role of the solicitor in this case will be to advise whether to accept the settlement offered or ask for more, and to decide the point, if any, at which the chance of an amicable settlement has receded and legal action needs to be launched.

Bearing all of this in mind, a qualified and experienced clinical negligence solicitor will always advise clients just exactly how much a claim might cost to launch, how much of those costs can eventually be recovered and what mechanisms are in place to allow people of less than lavish means to pursue compensation claims. Luckily, the days in which only the rich could pursue legal action, and many of the people that opted to do so did so under the threat of financial ruin, have largely gone. Recent changes in the rules around Legal Aid and so called ‘No Win No Fee’ arrangements have muddied the waters somewhat, but a claimant who has genuinely suffered neglect and its consequences can still make a claim without bearing a financial risk.

Legal Aid

Following the Legal Aid, Sentencing and Punishment of Offenders Act 2012 the only clinical negligence cases in which legal aid might be claimed in order to fight a case are those in which a child suffers neurological injury causing severe disability during pregnancy, childbirth or the first 8 weeks of the post natal period.

Legal expenses insurance

It may well be that you already have the insurance necessary to cover the costs of legal expenses. Some home and contents cover, or bank accounts and credit cards, come with such insurance as an added extra, and it may be that it will cover a claim for clinical negligence. Before claiming on such insurance, get a clinical negligence solicitor to look over the details of the policy. They’ll be able to confirm whether it covers all of the aspects of funding you’re likely to need, and will also be willing to liaise with your insurance company rather than leaving you to pin down every detail of the small print.

Conditional Fee Arrangement

The majority of clinical negligence claims are funded via a conditional fee arrangement (CFA), also known as the ‘no win no fee’ system. This system has several advantages; it doesn’t cost the claimant anything up front, it protects them from the risk of having to pay the costs of the other sides legal fees if they lose their case, and it allows them to keep the bulk of any compensation which is awarded to them. There are still likely to be some costs involved, however, such as those required for initial investigation of your treatment and condition before a CFA is entered into, and the cost of taking out insurance against the risk of losing the case and having to pay legal fees. Following recent changes in the law, the ‘success fee’ paid to your solicitor will be taken from any compensation you receive (up to a maximum of 25%) rather than, as was previously the case, being claimed from the other side. One of the chief advantages of a CFA, particularly in cases as complex as clinical negligence claims, is that it means a solicitor is only likely to take on your case if they feel there is a very good chance of you winning, and thus of them receiving their success fee.

Changes to CFAs

The use of CFAs in personal injury cases became more widespread following the Access to Justice Act 1999, and this led to a perception, in some quarters, that a ‘compensation culture’ was being created. Although there is no doubt that a few disreputable solicitors encouraged clients to make frivolous claims on the basis that insurance firms would rather pay out than fight the case, the truth of the matter is that the majority of cases involved people who had been genuinely injured through the neglect of a third party.

A government inquiry into the ‘compensation culture’ – entitled Common Sense Common Safety – actually came to the conclusion that it was largely a media myth. By that time, however, the direction of policy had been set, and suggestions from the Jackson Report in 2009 became law as part of the aforementioned Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act. These included the changes to CFAs outlined above.

The irony of the situation where clinical negligence is concerned is that specialist solicitors, aware of the toll which a long and difficult case could take on a claimant, would only ever opt to launch legal action in cases where they felt the suffering was genuine and neglect could be proved.

Using your own money

An experienced solicitor – who, it must be remembered, only gets paid if you win your case – will refuse to enter into a CFA if they feel your chances of success are less than 60%. At this point, you may well opt to fund proceedings yourself, but any reputable solicitor would advise against it. If Legal Aid were still available for clinical negligence cases then it might be a risk worth taking, but a high chance of failure, coupled with the rapidly escalating costs of fighting such a case, could lead to financial disaster.

Expenses you would have to meet yourself would include the hourly rates charged by your solicitor, a barrister and expert witnesses, not to mention the potential costs if you lose the case. It may seem harsh, particularly if you genuinely believe you’ve suffered thanks to neglect, but a good solicitor will always offer advice aimed at achieving the best result for you, and sometimes this might means simply following the official channels of complaint, pursuing an apology and hoping that your experience influences future practice for the better.

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