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Making a complaint – Clinical Negligence

Clinical negligence/medical negligence occurs when a professional in the health service provided care that was below standard and as a result has made the condition worse. Negligence may occur from delay or failure to diagnose a condition, delay or failure to treat a condition, when a treatment goes wrong, use of the wrong treatment, or failure to obtain consent.

At Steps we recognise that it can be very difficult to make the decision to pursue a claim, particularly if you have become very involved with those currently treating you or your child. You may feel that they had the best of intentions but that you or your child is still suffering as a result. It is not, however, a case of the doctor or surgeon concerned being personally hounded; indeed it is often extremely far removed, and all handled by lawyers and the litigation arm of the NHS. A further concern of many individuals and parents is that if they are pursuing a claim, the treatment may suffer. In fact the reverse is often true, and treatment is very attentive.

A parent pursuing medical negligence on behalf of their children should not feel embarrassed or ashamed, if anything, they should feel the exact opposite as they are taking action to ensure that their child receives the money they are entitled to. Money that will serve for potential future treatments and surgeries which may well be required through their life; the parents are therefore safeguarding financial help for the child when they get older and any complications may have set in.

Litigation has an important role to play in helping to shape the future of patient care. As acknowledged in many occasions by the NHS Litigation Department, they recognise the importance of litigation in improving current medical practice. Steps works with a very experienced law firm in the area of clinical, or medical, negligence – FieldFisher. STEPS is very happy to work with this company as they are professional, extremely helpful and empathetic.

You need to think carefully about whether to make a claim; it is usually a long process, and may not even lead to a successful claim being instigated, if there is not a claim to answer. You can have an initial, informal chat by calling STEPS 01925 750271, or William Jones at Fieldfisher on 0207 861 4590, Will.Jones@fieldfisher.com to understand the process more.

We have created a set of questions that might be of help in deciding whether to pursue a claim;

Frequently Asked Questions

1. What is the difference between a complaint and medical negligence?

You can complain about medical treatment received but there is no obligation for whoever provided you with medical treatment to ”right’ any ‘wrong’. If you make a complaint you may be provided with an explanation as to what happened but it is unlikely that you will receive an apology or an offer of any compensation. If you bring a claim for medical negligence then the aim is to recover damages (money). A medical negligence claim is a formal process designed to provide the claimant justice.

2. Can the Claimant issue a formal complaint and at the same time seek for medical negligence?

‘Yes, You can pursue a complaint at the same time as asking a solicitor to investigate a claim. The NHS recognises that the doctors and nurses do make errors and that important lessons can be learned from complaints and claims. Hospitals and GP are encouraged to make full and frank responses to any complaints. A complaint can provide answers as to why the error occurred and to ensure that they are investigated within the healthcare setting to hopefully prevent them happening again. Any complaint should be made within 12 months of the date of the incident complained of.

3. Why bring a Claim?
People may be concerned about bringing a claim against the NHS. However if a child or an individual has been injured as a result of negligent medical treatment then whilst a successful claim can never turn back the clock, compensation can provide security and funds to meet the injured persons needs now and into the future. Claims are often brought in order to get answers to questions such as why their treatment went wrong and whether there injuries could have been avoided. Claims against the NHS can result in changes to practices, improve patient care and hopefully preventing similar errors being made in the future

4. What does DDH stand for?
DDH stands for Developmental Dysplasia of the Hip. It is sometimes known more simply as hip dysplasia. For more information on the condition see the dedicated DDH page here http://www.steps-charity.org.uk/conditions/hip-dysplasia-ddh/

5. How do I know if the medical professional is responsible for failing to pick up DDH?
You don’t. It is necessary to get independent experts to consider whether the medical professional is responsible.

In legal terms it is necessary to show that the Defendant is liable for failing to pick up DDH. In order to show that a Defendant is liable the Claimant must prove that the Defendant:
o Breached their duty of care, and
o Caused an identified injury.

6. What is a breach of duty?
Breach of duty is also known as negligence. Anyone treated by a medical professional is owed a duty of care. The duty of care is breached if the treatment is so poor so that the medical professional acts in a way that no reasonably competent body of medical professionals working in that medical field at that time would have acted.

In a DDH case we may be able to argue that the paediatrician or the nurse should have suspected DDH during the first few days of the baby’s life. We may be able to argue that the GP or the health visitor should have suspected DDH during the first few weeks/months of life.

If the duty of care is breached then the actions are considered to be negligent.

7. What is “causation”?
Causation is the second strand of the law which must be proved in order to bring a successful claim (after breach of duty). If the treatment received is judged to be negligent then it must also be shown, through the use of expert evidence, that the negligence ”caused”, or at least ”materially contributed to”, the identified injury suffered.  In DDH cases it is necessary to show that earlier treatment would have resulted in a better prognosis for the Claimant. For example, it may be that if DDH was diagnosed during the when the baby was only a few weeks’ old then the Claimant could have been treated simply using a harness. Because of the delay in diagnosing DDH the Claimant may suffer with pain/discomfort in their hip or hips. Therefore, the delay in diagnosing DDH (the breach of duty) has caused an injury.

Breach of duty + causation = liability

8. Is there a time limit for bringing a DDH claim?
Yes, where the Claimant is a child the claim must be brought by their 21st birthday. If the Claimant is an adult the claim must be brought within three years of the alleged negligence or, if later, three years from the date of knowledge of the alleged negligence.

If the Claimant is a child then they will still be the Claimant but they would have an adult to assist them with the claim (usually a parent). The adult is known as the Claimant’s ”Litigation Friend”.

9. How much compensation can be claimed for DDH?
This will depend on the individual circumstances. Often Claimants who suffered a late diagnosis of DDH require hip surgery during childhood. There is a risk of suffering with premature arthritis and requiring hip replacement surgery in adulthood. The Claimant may require extra care before and after surgeries.

Some examples of recoverable damages are:

• Past care (often provided gratuitously by family members)
• Current and future care
• Travel expenses (i.e. for hospital visits)
• Loss of earnings or a handicap in the labour market – a delay in diagnosing DDH can result in the Claimant being unable to do certain jobs which require a significant amount of physical endurance – such as working for the police force or in the military. It may be
possible to claim for a parent’s loss of earnings if the parent has been unable to work due to the extra care provided to the Claimant.
• Cost of future medical treatment (the law allows the Claimant to recover the cost of future medical care being provided on a private basis)
• Therapies – often Claimants will require things such as physiotherapy, hydrotherapy and occupational therapy.
• Aids, equipment and adaptations. Sometimes adaptations will need to be made to the home, there may be a need for specialist equipment to assist with mobility.

10. How is the compensation for DDH calculated?
The aim of the law is to put the Claimant back in the position they would have been in had the act of negligence not occurred. Any losses resulting from a negligent delay in DDH diagnosis can, in theory, be recovered from the Defendant.

11. Who can claim for DDH negligence?
Anyone can make a medical negligence claim as long as there are no limitation issues (see 6, above).

12. How are DDH claims funded?
This will depend on the individual circumstances. In some cases the Claimant will have the benefit of Legal Expenses Insurance. This is often attached to a motor or house contents insurance policy. In other cases we may be able to offer the Claimant a Conditional Fee Agreement (often known as a no-win-no-fee agreement). In order to offer you a Conditional Fee Agreement we will need to satisfy ourselves that the case has reasonable prospects of success. Legal Aid is not available for DDH cases.

13. Will I have to go to court?
It is very unlikely that you would need to attend Court. The vast majority of cases never get as far as trial.

14. Can we apply for financial assistance?
If we consider that the claim has reasonable prospects of success then we may be able to offer you a Conditional Fee Agreement.

Where the case is funded by way of a Conditional Fee Agreement the Claimant does not need to pay anything until the end of the case, and only pays something if the claim is successful. The amount paid to us is known as a ”success fee” and would be agreed at the beginning of the claim as a percentage figure of part of the damages recovered.

15. Can we apply for interim payments?
An interim payment is an amount of money paid before the total amount owed is decided. Interim payments may be possible where liability has been proven but before the value of the claim is yet to be agreed by the parties or enforced by the Court. Interim payments are appropriate where the Claimant had immediate needs and cannot wait for their case to be quantified.

16. What is the claims process?
The claim starts by obtaining a full set of the relevant medical record and instructing the relevant expert or experts to provide an opinion on liability. If the expert evidence received is ”positive” i.e. negligence and causation is established, then a letter of claim setting out the allegations will normally be sent to the Defendant. The Defendant has four months in which to respond to the allegations – although the four month period is often extended. If the Defendant makes a full admission of liability we ”enter judgment” and move onto quantifying the claim. The process of quantifying the claim involves further experts.

If the Defendant denies liability in their letter of response then we would need to review the merits of the claim in the light of the Defendant’s arguments. If the claim still has reasonable prospects of success then we would issue the Claim at Court and the parties would need to agree a timetable for the rest of the case. This timetable is known as a directions order and sets out the dates by which the parties must comply with various stages of litigation.

The directions order will include the date of the trial at the end of the timetable.

17. How long will a claim take?

It is unlikely that a successful claim would conclude in less than two years. Sometimes claims can take several years – much depends on how the Defendant responds to the allegations. In such cases it may be possible to claim an interim payment (see above).

18. What will happen when I make a DDH claim?
If we consider that your case has reasonable prospects of success then we would need to discuss and agree the best funding option for the claim. We would generally need to take a statement from you and obtain copies of all relevant medical records. This normally means the Claimant’s medical records and the mother’s antenatal and labour records.

Depending on the facts of the case an expert would then be instructed to report on either negligence or causation. Once liability has been investigated the merits of the case would be discussed with you and we would agree the next steps.

19. When should DDH be detected?
This depends on a range of factors, including whether the Claimant was born with DDH or whether it developed in the first few months of the Claimant’s life. DDH can be detected during the neonatal period but is often detected later by a health visitor or the GP and confirmed by ultrasound scan.

20. Can I claim for DDH against the NHS?
Yes, the majority of DDH cases are against the NHS.

The claim may be against a private doctor. There are no legal restrictions to bringing a claim against either the NHS or against a private doctor.

21. How will I receive compensation?
Compensation will be paid by the Defendant at the end of a successful claim. If the Claimant is a child then the money will generally be invested by the Court until the Child is 18 years old.

22. Will a claim affect DDH treatment?
No. Treating medical staff are not generally aware that a claim has been made by you.

23. Who will be my point of contact during the claim?
Will Jones is an associate solicitor and will be your first contact at Fieldfisher.
http://www.fieldfisher.com/personalinjury/our-team/j/will-jones

24. What information is required for a DDH claim?
We will need to establish the following in relation to liability:
• whether the Claimant had any DDH risk factors at birth (a family history of hip problems or breech position at or after 36 weeks),
• which hip examinations were carried out and when,
• whether at any stage a scan should have been arranged because DDH was or should have been suspected,
• if a scan was carried out, whether it was carried out and reported on to the required standard,
• whether the treatment provided one DDH was diagnosed was carried out to the required standard.

If we can establish the liability then we would need to consider what the case is worth. We would require up to date medical records, probably a further witness statement and further expert evidence to establish the following:

• What extra care has been provided for the Claimant in the past
• What are the Claimant’s current and future care needs
• If and when the Claimant will require hip replacement surgery
• If and when the Claimant will require hip revision surgery
• Whether there are any psychological issues as a result of the late diagnosis of DDH
• Are there any therapies which the Claimant would benefit from
• Are there any aids and equipment the Claimant would benefit from?

This information is gained from a combination of factual evidence (medical records/red book/witness statements) and expert evidence (reports).

25. Where can I find out more information about funding a DDH claim?
Further information can be found on the Fieldfisher website here – http://www.fieldfisher.com/personalinjury/about-us/no-win-no-fee

Please note that public funding/legal aid is not available for DDH cases.

26. Can I change my lawyer during a claim?
Yes. Should you wish you can change lawyer at any time during your claim.

27. What if the defendants do not admit negligence?
If the Defendant does not admit negligence then we would need to consider why they are not admitting negligence. If it is because of new evidence that has recently come to light then we may need to reconsider the merits of the claim. However, if we still consider that there are reasonable prospects of success then we would issue the claim at Court and commence the formal stage of litigation.

Medical negligence explained

Medical negligence, or clinical negligence, is a very important area which STEPS  know is one close to many of your hearts. It is a sensitive subject, as nobody wants to give false hope, it is often a lengthy process and it can be very hard to prove – negligence, for example, may be clear, but has the child suffered more because of it? It is a complex and specialised area and for this reason it is important if you are looking to pursue a claim that you choose a specialist, rather than the local firm down the road.  AVMA (‘Action Against Medical Accidents’ charity) www.avma.org.uk have a list of solicitors to choose from.

STEPS are very happy to work with two very experienced law firms in the area of clinical, or medical negligence:-

Edwina Rawson from Field Fisher Waterhouse
Julianne Moore from Pannone

Both companies are professional, extremely helpful and are very happy to have an initial, free, no-obligation chat.

It can be very difficult to make the decision to pursue a claim, particularly if you have become very involved with those currently treating your child.  You may feel that they had the best of intentions but your child is still suffering as a result.  It is not, however, a case of the doctor or surgeon concerned being personally hounded; indeed it is often extremely far removed, and all handled by lawyers and the litigation arm of the NHS.  A further concern of many parents is that if they are pursuing a claim, their child’s treatment may suffer.  In fact the reverse is often true, and treatment is usually very attentive.

Nobody is a ‘winner’ in these cases, but what you are doing is taking action so that your child receives the money they are entitled to for treatments and surgery etc which may well be required through their life; you are therefore safeguarding financial help for your child when they get older and any complications may have set in.

If you feel, that this is something that you wish to consider, then please call us at STEPS on 01925 750271 for an initial chat. One thing that we would advise people if they are even thinking of making a claim is to keep notes of any treatments, diagnoses, or occurrences which would be pertinent; it is easy to forget all the small details some years down the line.

Case history

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