How is your claim investigated?
As soon as you begin to feel you may have been the victim of clinical negligence you should contact a firm of solicitors who specialise in the field. Although the principles of a clinical negligence claim are basically the same as those which underlie any claim for personal injury compensation, the specific details are often likely to be much more complex.
There are therefore two very good reasons for launching an investigation into your claim at the earliest possible opportunity. The first is that the details of the case are still likely to be fresh in your mind and the minds of anyone else involved, and the relevant records are probably going to be easier to track down and access. The second is that there is actually a legal time limit in place. The details of this statutory limit are set out in the Limitation Act 1980, which states that a claim has to be launched within three years of the claimant becoming aware of the injury in question.
The use of the phrase ‘becoming aware’ is vital in this case, as it means that the three year period is not necessarily counted from the date of the treatment in question but from the date at which you realised something went wrong and you were suffering an injury as a result. In some instances there can be quite a long time between these two dates. There are exceptions to the three year rule, such as cases involving children under the age of 18. In cases such as these, when a parent or carer is claiming on behalf of a child for example, the three year limit is only counted from the date of the child’s 18th birthday. Other exceptions include patients who may be unable to pursue their own claim due to a disability covered by the Mental Health Act 1983. Whether this disability was an existing condition, or was caused by the negligence in question, the three year limit doesn’t come into force until such time as the patient was discharged from under the auspices of the Act, or the disability ceased to have effect.
As can be seen, when dealing with cases of clinical negligence even something as seemingly simple as when the claim is dated from can he highly complex, which is why it’s vital that you seek expert help.
What does a claim involve?
The principles of a clinical negligence claim are relatively simple, in that they involve demonstrating that the treatment you received fell below a certain standard, and that you have suffered an injury or illness as a result. What makes these claims so complex, however, is that the details of any medical treatment are likely to be the subject of disagreement between different experts, as are the details of any injury caused and the degree to which this injury can be blamed upon the treatment. Building a successful case will involve gathering together as much detail of your treatment as possible and utilising the services of a medical expert, or experts, able to persuade the court that the treatment you received was indeed negligent and did directly cause your injury or illness.
The first action of many patients who feel they weren’t treated properly is to make an official complaint to the relevant body. A complaint of this kind won’t have any impact upon future legal action and may well be helpful when it comes to unearthing the details of your treatment and building the fullest possible picture. The right of patients to complain to the NHS is set out in the NHS constitution, which states that patients have a right to have their complaints investigated efficiently, to learn the outcome of any compliant and to receive compensation if they’ve been harmed.
The body to which the complaint is directed will vary from case to case; for some patients it will be the body which provided the service, for others, the body which commissioned the service, such as a clinical commissioning group or NHS England. In either case, your complaint should be acknowledged, either verbally or in writing, within three working days, and this acknowledgement should include an agreement to meet and discuss how your complaint will be handled and how long it is likely to take.
If your claim involves treatment received at a privately run establishment then an initial complaint will be directed either to the clinician who undertook the treatment, or to the management team responsible for running the clinic in question. Clinics of this kid are regulated by the Care Quality Commission and the General Medical Council. These independent bodies set out minimum standards of care against which any treatment can be measured in an attempt to ascertain whether it was negligent.
Although the presence of a robust and officially sanctioned framework for making complaints may seem reassuring, the reality at the ‘coalface’ is often less than satisfactory. According to Healthwatch, an independent body committed to raising standards in health and social care, many patients experiencing poor care still feel reluctant to complain about this care:
‘According to our research and our conversations with patients, care users and the public, we found that fewer than half of those who experience poor care actually report it. As a result we estimate that 250,000 incidents went unreported last year. This means that one person every two minutes is experiencing poor care but feels unable to even report it.’
Some of the statistics gathered by Healthwatch England for their 2014 report ‘Suffering in Silence’ highlight the difficulties people often feel when taking on a daunting organisation the size of the NHS. Some of the most striking figures from the report include:
- Two thirds of people experiencing or witnessing poor care failed to register a complaint.
- 23% of these people said they did not know who to complain to.
- 61% of those who did complain did not feel they were taken seriously.
- 49% never received an apology.
- 26% said they did not complain because they felt it would have a negative impact on the treatment they received.
- A third of those who did complain had no formal or informal help or support.
All of which underlines the importance of accessing expert help if you feel you have been badly let down by a health practitioner of any kind. Whilst an official complaint may result in an apology – and in some cases this is all that a neglected patient is seeking – more serious cases which have resulted in ongoing pain, suffering and financial repercussions should be compensated in financial terms, not least because this might allow you to start to put the pieces of your life back together. Putting together such a claim is a lengthy and complex business, requiring expert input, and an experienced clinical negligence solicitor is far and away the best person to do so.
At an initial consultation your solicitor will want to know the following details, complete with dates and places:
- Why you sought medical treatment, and whether there were any earlier medical problems which might be relevant.
- The names of all the clinicians and carers involved with your case, including doctors who may have seen you before and after the treatment in question.
- What the clinician in question asked you, what diagnosis was made and the advice given and treatment prescribed.
- Whether you were told what the treatment involved, what the risks were, whether there were alternative treatments available and what was likely to happen if you didn’t receive the treatment offered.
- The details of any relevant witnesses, including relatives or friends you may have confided in.
- The details of any later consultations.
- Whether you have complained, either through official frameworks or directly to the clinician concerned.
If we feel that your claim is strong enough to warrant further explanation then we will write to the defendants concerned (the GP, Clinician, Clinic or Commissioning Group etc.), setting out the details you have given to us and providing the first indication that you believe they have been negligent and are considering taking action. If the case seems strong enough then we may even invite a settlement at this stage. In many cases, this is enough to draw an admission of negligence and offer of compensation, although many complex arguments may still remain as to the extent of your injury, the degree to which this was directly caused by your treatment and the financial impact going forward.
Another purpose of this initial letter is to request, with your permission, access to your medical records. The right to access your own medical records is set out in the Data Protection Act 1998, under section 7. Your solicitor will advise as to who you should contact for record relevant to the claim, although help can also be sought from your local Patient Advice and Liaison Service (PALS).
The NHS has a legal duty to respond to such a request within 40 days, and the maximum charges for receiving permanent copies of your records are as follows:
- Records stored entirely on computer – £10
- Records stored manually – £50.
- Records stored partially on computer and manually – £50.
Your solicitor will examine your records at length and they will be examined by a medical expert who will consider them, alongside your own account of what happened, and then deliver a report outlining whether they feel there is a negligence case to answer, and whether a court is more likely than not to find a causal link between your treatment and any injury.
Finding just the right medical expert to examine your case is one of the most important duties your solicitor can perform. A professional with years of experience in the field of clinical negligence will know exactly where to find a medical expert with the knowledge, resume and experience to enable them to evaluate the particulars of your specific case. Although they will be referred to as part of ‘your’ team, it should be noted that medical experts have a duty to give an opinion which is honest and independent.
The BMJ, in its advice to expert medical witnesses, states: ‘When accepting instructions, you must ensure that you are appropriately qualified. For example, if you are reporting on standard of care, the case must concern a doctor working in the same discipline as yourself, otherwise you will not be able to provide a comment on their management of a patient. You should be able to provide an analytical, objective, balanced, and accurate opinion. You should not just give a factual account of the case or be seen to “sit on the fence”, but provide an opinion based on the balance of probabilities (that is, a likelihood of 51% or more).
‘Expert reports are used by solicitors to assess the likelihood that a claim will be successful, the share of liability that can be attributed to any particular party, and the level of compensation that should be paid.’
It is also stated that expert medical witnesses need to be familiar with part 35 of the Civil Procedure Rules and Practice Directions, which sets out the legal duties of an expert witness.
Your clinical negligence solicitor will take great care to select a medical expert who knows the area of medicine related to your case, and who will be able to present their findings in court – should the case progress that far – in a calm, articulate and persuasive manner. Once the expert has reported their opinion of your case, the decision will be taken whether to proceed with a clinical negligence claim or not.