Why do you need “counsel”?

If you’ve been injured or made unwell due to receiving negligent medical treatment of any kind then you have every right to seek compensation. It’s not a question of ‘punishing’ the practitioner in question, or of seeking a pay-out for its own sake, it’s simply a question of seeking redress and a financial award which will ensure that the negligent treatment you’ve received doesn’t end up leaving you out of pocket.

In cases of medical negligence, the consequences of any injury can be long lasting and life-changing, with people left unable to earn the same wage or even work for a living at all, and having to pay for care for many years to come. That’s why it’s vital that if you, or someone you’re representing, has suffered clinical negligence, you assemble the strongest possible team to fight your case, and a key role in that team will be played by your barrister.

DID YOU KNOW: 98% of clinical negligence cases never make it to court.

When you first visit your clinical negligence solicitor they will give an honest opinion as to whether they feel you have a strong case to answer. Although the principles of a clinical negligence case are the same as those used for any other kind of personal injury, the details are likely to be far more complex, with technical medical details being discussed by experts employed by both sides of the argument. The initial assessment of your case will not be based on whether you emotionally ‘feel’ you’ve been treated negligently, or even whether your solicitor shares this feeling, but rather whether the facts of the case are likely to demonstrate this negligence to a significant degree. That’s just one reason why it’s better to start your case as quickly as you can, once you become aware that something has gone wrong.

The legal time limit for starting a clinical negligence claim is three years, dating not from the time of the treatment itself (although this might sometimes be the case), but from the date upon which you became aware of the injury which has been caused. There are exceptions to this limit, such as cases dealing with children under the age of 18 or people lacking the capability to represent themselves, but the general principle is that the sooner you speak to a clinical negligence solicitor, the better, particularly since cases of this kind can sometimes take several years to work their way through the system.

Establishing negligence

In many personal injury cases the issue of negligence is fairly easy to establish. A supermarket which leaves a floor soaking wet without warning signs, causing you to slip and injure yourself, has clearly been negligent, for example, and cases such as these will often be settled without much in the way of dispute. Establishing clinical negligence, on the other hand, is often far more difficult, relying, as it does, on expert opinion on the treatment you received. Anyone who’s ever had to undergo medical treatment will know that the approach, opinion, prognosis and prescriptions offered by different practitioners can vary wildly, and what may strike one doctor as being reasonable may seem to another to be less than acceptable. For legal purposes, a principle known as the ‘Bolam Test’ has been established. This states that the medical practitioner has been negligent if the treatment they offered fell below the standard that might reasonably be expected for someone working in their field. In recent years, this definition has been broadened slightly with the Bolitho Test, as it was felt that the Bolam Test allowed clinical practitioners to rely on the support of their peers and to fall back on what was accepted practice rather than what might be a logical and sensible approach. This widening of the definition of clinical negligence has made it slightly easier to mount successful cases on the grounds of patients not being warned about the risks and side effects of treatment, for example, or not being offered alternative treatment which may have produced a better end result.

Whilst some cases of clinical negligence – the wrong limb being amputated, for example – may seem obvious, actually demonstrating negligence, as defined by the Bolitho Test, is often a subtle matter, particularly since a successful claim relies upon also demonstrating that the negligence involved directly caused the claimants illness or injury. This is why it’s vital to have an experienced barrister on your team from an early stage, analysing the facts of the case, using their experience and know-how to deliver a verdict as to whether you have a claim worth pursuing and, if you do, assembling the strongest possible argument.

Many people, daunted by the prospect of launching legal action, may worry that appointing a barrister means that an appearance in court becomes inevitable. In fact, the reverse is true. An experienced barrister with a strong track record in clinical negligence cases will work to settle the case before it reaches court, safe in the knowledge that this is what happens in the vast majority of cases and that, in the strongest claims, the issue of negligence is often settled fairly early with the argument then being about the extent of the injury, the degree to which it can be blamed on the negligence and the financial impact it has had and will have in the future.

NHSLA

If your clinical negligence claim is made against the NHS then it will be defended by the NHS Litigation Authority, an independent body created expressly for that purpose in 1995. The role of the NHSLA is to manage claims made against NHS members or private practitioners working on behalf of the NHS, to resolve claims and disputes and to use the learning gained from doing so to reduce the risks to patients going forward. This latter point is vital as it highlights one of the more widely positive aspects of clinical negligence compensation claims. For the individual concerned, a compensation claim is vital to them being able to live the rest of their life as fully as possible, as well as offering a sense of justice to balance the stress of feeling they’ve been let down by someone who was meant to be helping them. For the wider NHS, compensation claims of this kind help to build a body of knowledge which, if used correctly, will help to make services safer for all patients moving forward.

A document published by the NHS back in 2000, entitled ‘An Organisation with a Memory’, highlighted this very point, stating that: “data from litigation claims represent a potentially rich source of learning from failure”.

SOURCE: NHSLA (PDF)

In that sense then, whilst the key aim of your barrister will be to gain the best possible settlement on your behalf, the work they do, particularly when dealing with an organisation as large and experienced as the NHSLA, will play a part in raising standards across the board.

The issue of clinical negligence compensation is one which often appears in the media, and is generally treated as being a ‘problem’ which is in danger of bankrupting the service as a whole. The truth of the matter is that, in an organisation as large as the NHS (it currently employs more than 1.6 million people) mistakes are bound to be made. Currently, however, these mistakes occur in only 0.005% of cases involving 243 million patients dealt with per year. The amount of compensation paid out, which is detailed below, is a reflection of the serious nature of these cases and of the dramatic effect which the negligence has had on the patients involved, rather than being symptomatic of a system which is paying out too freely.

DID YOU KNOW: Last year the NHS LA paid over £1.1 billion to patients who suffered harm.

Conference

Once your clinical negligence solicitor has evaluated your case, gained access to and studied your medical records, sought input from a medical expert and had your case evaluated by a barrister, a meeting known as a conference will take place in which you will meet with the members of the team and discuss your options going forward. Part of this conference will involve the barrister testing your strengths as a witness, and that of the medical expert who has been employed. By the end of the conference it will be much clearer whether you have a claim worth fighting, whether more information is required or whether the risk of proceeding is too great.

If the consensus is that your claim isn’t likely to succeed then you shouldn’t take this as any kind of a judgement on its’ overall validity. It may well be accepted that the treatment you received was below the acceptable standard, but an experienced barrister will have fought many such cases before, and will have a clear grasp of the level of evidence required to pursue a successful case or to persuade a body such as the NHSLA to admit negligence. If the evidence isn’t strong enough then the claim is likely to fail, something which will merely compound the stress and misery you’ve already suffered. Bear in mind that a solicitor working under a conditional fee arrangement (also known as ‘no win no fee’) has a vested interest in winning your case, as that’s the only way they’re going to be paid, and that if they, together with your barrister, feel it isn’t worth pursuing then the chances are that it definitely isn’t.

Compensation

It is often assumed that the main job of a barrister is to argue your case once it makes its’ way to court, but in reality a skilled and experienced barrister, whilst working through the legal process known as the pre-action protocol will do everything they can to narrow the scope of the claim and reach an agreement which avoids the stress and time of a court appearance. In some cases negligence may be accepted (sometimes without an admission of fault) fairly early in the process, leaving the amount of compensation claimed and offered to be argued over. Although each case is unique, your barrister will have experience of similar claims and will be well versed in the system used to calculate compensation payments. Speaking broadly, any compensation you receive will be made up of two components:

General Damages

General Damages are calculated on the basis of the type and severity of the injury you’ve received. If the case goes to court the judge will refer to a government published tariff called the Judicial College Guidelines: The Assessment of General Damages in Personal Injury Cases, now in its’ 13th Edition. This book lists specific injuries to parts of the body and the amount recommended for each, altered to take into account your previous health, age and the chances of any recovery.

Your barrister will be familiar with the amounts listed in the tariff and will calibrate their negotiations accordingly.

Special Damages

The remainder of any compensation payment is intended to make sure that you don’t suffer financial hardship as a result of your injury. This includes any loss of earnings or pension – now and in the future – as well as expenses such as the cost of care and adaptations to the home which wouldn’t have arisen if you hadn’t been injured. Once again, an experienced barrister will know what level of compensation to expect and will be aware if, as if often the case, a defendant or their insurers are making an inadequate offer in the hope that you’ll jump at the chance of a quick settlement.

Mediation

The accepted wisdom may be that barristers are always desperate to enjoy their day in court, but the truth of the matter is that the whole of your legal team will be working to achieve the best possible result for their client, and this may mean suggesting a form of alternative dispute resolution (ADR). This could mean mediation, neutral evaluation, arbitration or the use of official ombudsman schemes. Indeed, as mentioned in the Ministry of Justice Practice Direction 29, the judge in a case may give directions for the parties to consider ADR, thus avoiding a trial.

Bodies such as Trust Mediation and the Centre for Effective Dispute Resolution offer these services, and your barrister will be aware of all the options, having utilised ADR for many clients in the past.

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