Monthly Archives: May 2014

An Essential Guide to Medical Negligence Claims

Every day, countless people are treated by doctors, nurses, dentists and other medical professionals. Fortunately, the standard of health care in the UK is usually high, and we can trust our health care professionals to provide good quality treatment.

However, people do not always have a positive outcome from medical treatment. Things can go wrong, and the outcome of the treatment is not always what was expected.

In many such cases, this is not due to fault.

Poor outcomes may be due to the medical condition of the patient before treatment began, or due to complications which happen regardless of the care and skill of the treating clinician.

There are times, however, when the treating clinicians make mistakes, which result in a poor outcome and injury.

 This may cause patients to require further intensive treatment, or may leave patients permanently injured.

 In this scenario, the patient may be able to seek compensation from the clinician by pursuing a damages claim for “medical” (or “clinical”) negligence.

 Areas which may give rise to claims for medical negligence include:-

  • Obstetric or midwifery care during pregnancy or childbirth;
  • Plastic or cosmetic surgery (including breast augmentation, rhinoplasty and facelifts);
  • Orthopaedic surgery (often failure to properly treat fractures);
  • Emergency care in A & E (including failure to diagnose strokes, heart attacks, fractures and brain haemorrhage);
  • GP care (e.g. misdiagnosis or failure to refer such as cancer, cardiac disease, stroke, heart attacks, etc);
  • Surgery, including urology, general surgery, gynaecology, key-hole (or laparascopic) surgery;
  • Anaesthetic errors (including anaesthetic awareness);
  • Dental negligence (during routine or specialist dental treatment such as implants);
  • Nursing negligence (often failing to prevent hospital falls or pressure sores, or district nursing errors);

 What is Medical Negligence?

Medical negligence is often referred to as clinical negligence, since it covers only core medical professionals (doctors and nurses), but also dentists, physiotherapists, psychologists, etc.

Negligence is when the treating clinician provides treatment which falls below a standard considered as reasonable for the clinician’s experience and speciality.

This may be by doing something which they should not have done, or failure to do something which they should have done.

Where a patient suffers injury as a result of this failure, they have a right to claim compensation for their injury from the clinician.

 It is important to remember that not all mistakes are negligent, and not all negative outcomes are due to negligence.

 What is a Medical Negligence Solicitor?

 A medical negligence solicitor is someone who specialises in claims for damages brought against the medical profession.

 Such a solicitor will have received specialist training, and will practice either exclusively, or largely, within this area.

 Pursuing a medical negligence claim is not straight forward, and is quite different to pursuing other types of personal injury claim.

 It is therefore important to find a solicitor who has expertise and experience of medical claims which encompasses both medical and legal knowledge.

 Ask your solicitor how much experience they have of medical negligence claims, and whether this is only sort of work which they do.

What is Compensation

 Compensation (often referred to as damages) is a sum of money to repay financial losses and physical or psychological pain and suffering.

 There are two main categories of compensation: General Damages and Special Damages.

 

  1. General Damages

 This is compensation for pain, suffering and loss of lifestyle which you have suffered as a result of your injury (your non-financial loss). Awards for pain and suffering the UK are limited, and there are guidelines available which give broad bands of financial compensation for particular injuries.

  1. Special Damages

 This is compensation for financial loss which you have incurred in the past, or will incur in the future, as a result of your injury. It can include the cost of medical treatment and equipment, travel and parking, clothing, loss of earnings, paid care or care provided by family and friends, paid help (including cleaning, gardening, etc), and accommodation costs (either the cost of adaptations or new accommodation).

 Breach of Duty and Causation

 What do I have to prove in order to establish a claim?

 You must prove both of the two following things, on the balance of probability (that is greater than 50% likelihood) in order to establish a medical negligence claim:-

  1. Breach of Duty

 You must prove that the treating clinician did something, or failed to do something, which no other reasonably competent practitioner would have done or failed to do. This is also referred to as liability.

  1. Causation

 You must prove that the breach of duty on behalf of your treating clinician caused you to suffer an injury which you would not have otherwise suffered. In other words, you would not have suffered your injuries if the clinician had provided the correct standard of care.

 How do I prove my Claim

 The duty will be on you to prove your claim, and you will require evidence to prove your claim. Since your claim is about medical treatment, the most important evidence will be evidence from medical experts in the form of expert reports.

 Your solicitor will recommend obtaining expert reports from independent medical experts who have both the specialist knowledge of the area of medicine relevant to your treatment and injury, and experience of the litigation process. It is most important that the correct medical expert is used, since their evidence will be absolutely crucial to the success or otherwise of your claim. Without supportive expert evidence, you will be unable to pursue your claim.

 Who do I sue?

 If the treatment which you received was provided in an NHS hospital, you will sue the NHS Trust responsible for that hospital, rather than the individual clinician involved. If your treatment was provided by a GP or a doctor at a private hospital, then you will sue the individual GP or doctor rather than the GP practice or private hospital. All GPs and private doctors have insurance to cover claims against them. If your claim is against a dentist, then you will sue the individual dentist rather than the dental surgery. There are exceptions to these general rules, however, and your solicitor will need to carefully consider who should be pursued.

 Preparing your case 

  1. Initial Investigations

 Initial investigations are required before either you or your solicitor can be confident that your claim is likely to be successful.

 Depending upon the circumstances of your case, the first stage may involve taking a witness statement from you, and possibly from others who may have important information about the treatment you received.

 Your solicitor will also apply for copies of your medical records.

 Once the records are received, your solicitor will begin to obtain expert evidence. The first report will deal with the issue of breach of duty. If the expert concludes that the treatment you received was substandard, then your solicitor will go on to obtain an expert report on the issue of causation.

 Sometimes it is possible for one expert to deal with breach of duty and causation, but sometimes two or more reports are required from different experts.

 Initial investigations can take several months, and even a year, depending upon how many reports are required. In some cases such as birth injury claims, the initial investigations can take even longer because of the specialist expert report required.

 Once these investigations have been carried out, your solicitor will be in a position to advise you with much more certainty whether your claim is likely to be successful.

 Preparing your Case 

  1. Valuing your claim

 In order to value your claim, your solicitor will need to consider the nature and extent of your injury, whether your injury will be permanent, or will improve, and the impact of your injury on your lifestyle and ability to work and self care.

The value of your claim and the amount of compensation you can claim is often called “quantum”.

As with proving your case on liability and causation, you must prove the financial losses which you have or will incur.

 Expert evidence will be obtained dealing with the nature and extent of your injuries and your future prognosis.

 These expert reports are called “Condition and Prognosis reports” and the expert will need to examine you in order to provide their report.

 Sometimes it may be necessary to obtain more than one report in order to deal with different aspects of your injury.

 On occasion, experts may not be able to give a final prognosis, and may recommend further treatment first.

 It may also be necessary for your solicitor to obtain “quantum” reports to assess the value of your financial losses.

This can include reports on nursing care, occupational therapy, accommodation, physiotherapy, etc.

 Your solicitor will also need evidence from you to prove your financial losses, including receipts for any items purchase, invoices for services paid for, wage slips or business accounts, tax returns, etc.

 Once your solicitor has obtained all of the evidence required to value your claim, a document called a Schedule of Loss will be drawn up which will set out all of the financial losses which you are able to claim.

 It can sometimes be a long time before the Schedule of Loss can be completed.

 Preparing your Case

  1. Pursuing your Claim

 Medical negligence claims are governed by a “pre-action protocol” which sets out the steps which both the Claimant and the Defendant (the treating clinician) must take before proceedings are actually issued and pursued through the Court.

 A letter of claim will be sent to the Defendant setting out the allegations of breach of duty and causation, and giving as much detail as possible about your resulting injury and your losses. The Defendant has four months to provide a detailed response, indicating whether your claim is admitted either fully or in part, or whether it is denied.

 It may be possible to negotiate a settlement of your case at this stage, without issuing Court proceedings.

 If it is not possible to settle your case at this stage, then it will be necessary to issue Court proceedings.

 Once this has taken place, the Court will provide a timetable for your case with all steps leading up to Trial.

  1. Will I have to go to Court?

 Many people are put off from making a claim by the thought of having to go to Court. By going to Court, we mean attending a Trial where a Judge decides the outcome of the case. The vast majority of medical negligence cases are resolved without going to Court, even where Court proceedings have been commenced. The Court strongly encourages early settlement of cases, and there are plenty of opportunities to negotiate settlement of your claim.

In the very unlikely scenario that your case goes to Trial, your solicitor will assist you every step of the way and ensure you have the help and support you need. 

  1. Is there a time limit for bringing a claim?

 It is vitally important to seek legal advice as soon as possible after the medical treatment, or as soon as you became aware that you have suffered an injury as a result of the medical treatment. This is because all medical negligence claims must be brought within three years of the negligent treatment.

This means that the Court proceedings must be commenced by issuing a claim form at Court within three years.

 Where you were not aware that you had suffered an injury as a result of treatment until later, the three years will run from the date that you became aware of your injury.

 These time limits are provided by statute law, and are rigidly applied by the Court. It is very rare indeed for a Court to be persuaded to allow a claim to be brought after the three year period.

 If a claim is brought on behalf of a child, they will have three years from the age of majority within which to start Court proceedings (i.e. until they are aged 21).

  1. How will I fund my claim?

 Before you embark on your claim, it is important to think about how you will pay for your legal costs and expenses, (such as cost of expert reports).

 The cost of investigating and pursuing a medical negligence claim can be very high. However, there are lots of different options available to limit or entirely remove the cost from you.

 You may have an existing insurance policy which covers the cost of investigating and pursuing a medical negligence claim, or we may be able to act under a Conditional Fee Agreement (“no win, no fee agreement”).

We will discuss all of your funding options with you at the outset to make sure that you get the best form of funding available for your circumstances.

 Who are Graham M Riley & Co Solicitors?

Graham M Riley & Co is an International Law Firm with an excellent reputation.

 We have a specialist team of dedicated medical negligence solicitors who are experts in pursuing medical negligence claims. We only ever act for Claimants, (injured patients), and are accredited by and members of the Association of Personal Injury Lawyers and the Royal Society of Medicine.

We represent people in various foreign countries pursuing claims of negligence that occurred within the United Kingdom, and due to updated technology of the internet, emails and Skype conferencing, travelling can be kept to a minimum.

 We are able to represent all Claimants who have suffered medical accidents, and have particular speciality in handling cases where patients have suffered severe, life changing injuries such as spinal injuries, brain damage and neurological injury, and fatal injury.

 This information relates to law and procedures in England and Wales. Please contact us if you need advice about the law and procedures in other legal jurisdictions.

 This fact sheet is for general guidance only, and should not be treated as a definitive guide or be regarded as legal advice.  If you need more details or information about the matters referred to in this fact sheet, please seek independent formal legal advice.

Leasing Business Premises: A Tenant’s Guide

Most people are familiar with residential leases and how they work as they have rent a flat or house or know someone who has.

However, commercial leases are very different, and unless you are familiar with them, there are many pitfalls and traps for the unwary.

One of the main differences is that commercial leases are normally custom-made to the tenant and the property or on a landlord’s standard terms.

Read on to learn how to negotiate the best commercial lease for you and your business.

Introduction

A lease is a legally enforceable contract between a landlord and a tenant, which sets out rights and responsibilities, so that each knows what the other should do in relation to their respective obligations relating to a property.

You may either enter into a new lease or ‘buy’ an existing lease (assignment) from someone else – the choice will depend upon the property in question

Heads of Terms

‘Heads of Terms’ are a summary of the commercial relation that a landlord and tenant have agreed.

This is a summary is used to instruct lawyers to produce the formal lease. 

Not all costs will be fixed at the time of agreeing the lease. Ask the Landlord to explain how costs are calculated so that you can make sure you can afford all of the costs involved.

Make sure that the length of the lease is right for your business needs.

Check what you need to do to the property in order to open and trade. Do you need to make and changes and will these require the landlord’s consent?

Think about the level of the rent, rent review and if you want to ‘break’ (end) the lease early (if your business plans change).

Make sure that the lease is subject to the Landlord and Tenant Act 1954 – this is common and may allow you to renew (extend) you lease, which it expires (ends).

If you don’t have the right to ‘renew’ the lease at the end, you could end with a business that you cannot sell and has no value and be forced to move to new premises.

Tip 1

Make sure that the ‘Heads’ cover everything that you want, including all costs and ensure that the property and the lease suit your business plans.

Don’t be afraid of requesting alternative terms if you are not happy with the Landlord’s offer, always bearing in mind that any later variation (such as lease length, rent review terms – including frequency and basis – break options, etc) may change the level of rent and incur additional fees.

Financial matters, rent deposits and guarantees

Be very careful if the landlord asks for a deposit, you should make sure you understand the basis on which it will be returned to you.

Tip 2

Any money held should be carefully looked after; any interest should be yours.  Make sure that it us held for as short a period as possible – it does not have to be held for the whole length of the lease.

If you are asked to give a ‘personal guarantee’, try and not offer your home as security.  Limit when and how the guarantee can be used.

The Landlord and Tenant Act 1954 gives you the right to extend your tenancy when your lease runs out.

Repairs

As you are likely to be responsible for the condition of the property, make sure that you are satisfied that there are no (major) repairs required as you may have to pay to pay for the repairs.

Make sure that the lease does not require you to put the property into a better condition than when you take the lease.

Tip 3

It is worth considering getting a formal (photographic) schedule of condition before taking the lease to record the condition at the beginning of the lease.

Beware however, if you ‘buy’ an existing lease, you may be responsible for undertaking repairs that you had not considered.

Breach of Lease

A breach of the lease may have serious effects and you must take care to understand your obligations and what might happen you fail to comply with your responsibility and what action your landlord may take against you and, if applicable, your guarantors.

The laws relating to Landlord and Tenant relationships are complex and you should seek professional advice so you are clear on your obligations and rights.

Tip 4

The remedy for a breach of your agreement may range from the Landlord sending in bailiffs, who may seize goods to the value of the breach, to the Landlord taking back the property from you (‘Forfeiture’). You should note that this would not take away your liability to pay arrears of rent.

ALWAYS take professional advice at the earliest possible opportunity if you are aware or unsure that there has been a breach of the lease, by you of the landlord.

Conclusion

If the above important facets are not dealt with before you take a commercial lease, it may prove to be an extremely costly and a problematic mistake for you and your business. 

Therefore, the advice of a specialist commercial property lawyer is very important. 

We can help you through all the pitfalls and traps by assist you with understanding the lease, and making sure the it suits your business needs. 

Graham M. Riley’s commercial property specialists are delighted to offer fixed fee tenant services, giving the tenant control over the level of service and the cost of the same.