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Solicitor Cheryl Bereza & Paralegal Angus Buchanan answer some commonly asked questions about medical negligence claims in a new series of videos.

In the first 2 videos, they take a look at how you go about making a claim.

 

 

 

 

 

If you would like to discuss a medical negligence case, please get in touch with us.

 

 

Birth injuries are very complex and demanding cases that require the specialist knowledge of experienced solicitors to ensure you are rightly compensated.

Our solicitors have successfully settled many birth injury claims.

During birth there can be injury to the mother, the baby or both. Some of these birth injuries are unavoidable, but there are a number of cases where injuries are caused by medical negligence.

Birth injuries to the mother can have devastating and life-long consequences.

Mothers are entitled to seek compensation for birth injuries they have suffered. As a mother, the injuries you can claim for include; incorrect suturing (stitching) subsequent to a Caesarean section, failure to manage pre-eclampsia or other infections, perineal tears which if not treated properly can lead to longstanding problems; retained products of conception, in the event of a miscarriage there is the risk of tissue remaining in the uterus which can lead to bleeding and infection; nervous shock following a traumatic birth.

Mothers are also entitled to seek compensation for the psychological affects of a traumatic delivery.  Mothers who struggle with psychological birth injuries suffer understandable stress and are more likely to endure depression and  post-traumatic stress disorder (PTSD).

We have successfully concluded many birth injury negligence cases and are experts in the field.

We will ensure that you receive adequate compensation for your pain and suffering as a result of your birth injury.

 

 

 

Members of the Society of Clinical Negligence Laywers (SCIL) have campaigned at Westminster against fixed fees for medical negligence claims.

The chairman of SCIL, Stephen Webber, said ‘We believe the most important issue here is patient safety – if there can be improvements and lessons learnt then the level of negligence will be reduced. That must be the starting point for reform’

Lord Justice Jackson published a report in July on fixed costs in which he said a working group should be set up.

A response to a consultation on fixed costs for clinical negligence claims is still being prepared by The Department of Health.

The full story, as reported in the Law Society Gazette can be read here.

The Ministry of Justice consultation “Personal injury discount rate: how it should be set in future”  closed on 11th May.   The consultation was first opened in March and is aimed at people and organisations with an interest in personal injury claims and damages in the UK.

 

This consultation forms part of the review of the framework under which the personal injury discount rate is set. The paper considers possibilities for how, when and by whom the discount rate should be set and core issues examined in the consultation paper are:

  • What principles should guide how the rate is set?
  • How often should the rate be set?
  • Who should set the discount rate?

The paper also considers whether sufficient use is being made of periodical payment orders.

 

Nestor, an Independant Financial Advice firm, have contributed to the consultation.  Their key points are:

  • “As a starting point, we do not consider that the current law on setting the discount rate is defective. We believe that the Wells principles of linking the quantum of future loss damages to low, or no risk investments is well judged and right for vulnerable claimants. It has always been our view that personal injury claimants are not ‘ordinary investors’ and any departure from Wells ought to be resisted.”
  • “Although we accept that there are certain practical issues with the use of Index Linked Government Stock (ILGS) as an investment vehicle, we do not believe that these issues are significant enough to break the guiding principle of Wells. It is our view that in the absence of anything safer than ILGS, any departure from the Wells principles would be unfair to claimants.”
  • “On the point of how claimants actually invest their damages, we believe that the question is erroneous in the context of Wells. How claimants actually invest their damages is irrelevant to the calculation of their damages. The fact is given that the 2.5% historical rate was so wrong for so long, claimants were forced to take risk with their damages, because of the inaction over the discount rate for so many years. The very size of the recent reduction illustrates that it has been wrong over a very lengthy period.”
  • “It is our view that if a claimant chooses to invest their future loss personal injury damages in riskier assets, then that is up to them, as long as they have taken expert and sensible advice. It is their money. This, we believe, is also an irrelevant point when considering the Wells principles, which are more concerned with the initial calculation of damages, rather than where a claimant actually invests.”
  • “We strongly support the greater use of Periodical Payment Orders (PPOs). Nestor has long argued that PPOs ought not to just be the preserve of the larger, more catastrophic personal injury claims. Within our response, we suggest that consideration be given to the introduction of a Practice Direction, which further compels the Courts and practitioners to consider earlier in the process whether a PPO is appropriate. In the majority of future loss claims, a PPO is more often than not in the claimant’s best interest.”
  • “We believe that there ought to be one discount rate for all, irrespective of the type of claim. We also do not believe that personal injury claimants ought to be assumed to be willing to take more investment risk with their damages if they opt to take a lump sum over a PPO. It would be unfair the penalise a claimant if they, for whatever reason, opted to accept a lump sum. We support greater use of PPOs, but not as a means of disadvantaging the claimant.”
  • “Our view is that the power to set and review the rate needs to remain the remit of the Lord Chancellor, under S1 of the Damages Act. That said, we also suggested that the Lord Chancellor ought to be compelled to have a fixed review period. The Lord Chancellor ought to be required to review the data on ILGS biennially, and announce the outcome on a fixed date. The injustice presently is that the power to set the rate lies with the Lord Chancellor, but there are no formal criteria as to when, or why. It is the lack of meaningful action on the rate in the past few years, which has caused recent dramatic events.”

You can read Nestor’s full response to the consultation here.

 

We now await the feedback from the Ministry of Justice.

On 30th January 2017, the Department of Health published a 12 week consultation, closing on 2nd May 2017, seeking views on proposals to introduce a system of Fixed Recoverable Costs in Lower Value Clinical Negligence Claims.

 

It is proposed that a Fixed Recoverable Costs regime would apply to clinical negligence cases involving awards of between £1,000 and £25,000 brought against the NHS as well as both not for profit and private healthcare providers in England and Wales, including dentists.

 

This would limit the amount of legal costs that could be recovered by solicitors who win clinical negligence claims on behalf of their clients to a set proportion of the damages (compensation) awarded to the injured patients or their families.

 

However, there are grave concerns from a number of bodies including charities for patient safety and justice and claimant solicitors regarding these proposals. One concern is the implications for access to justice as legal costs recovered by solicitors could only be a proportion of the damages secured for the patient/family which may mean that many would-be claimants would not be able to get a solicitor to represent them in cases where the damages are relatively low.  In effect many victims of serious neglect and negligent treatment such as in older people like we have seen at Mid Staffordshire and child death cases such as those seen at Morecambe Bay would simply be unable to have access to justice.

 

Another concern is the implications for patient safety, as an unintended consequence of the Fixed Recoverable Costs proposals would be the creation of a perverse incentive for NHS organisations to adopt a ‘deny and defend culture’. This is because they would be safe in the knowledge that simply defending and denying liability in many cases will mean that an injured patient or their family will be unable to take things further due to costs limitations. The result of this would be that important learning opportunities about lapses in patient safety would be lost. It is often the case that when errors have not initially been appreciated or admitted by the health provider, it is only the litigation process which brings these errors to light.

 

Angus Buchanan

 

About the author

Angus Buchanan works in the Medical Negligence department of Brindley Twist Tafft & James, a firm of solicitors in Coventry that specialises in medical negligence cases nationwide.  Angus has dealt with claims including medication prescription error, perforation caused by an endoscopy and a lack of pain relief during a caesarean section.