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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.

 

 

A No Win, No Fee Agreement is also known as a Conditional Fee Agreement and enables you to make a claim for compensation, with no financial risk to you and without paying any legal fees upfront.

In the event of your claim being unsuccessful for any reason, you will not have to pay any legal fees either to us or your opponent.

This means that those who might otherwise have been unable to pursue a claim with the worry of escalating legal costs are now able to do so without concern.

At BTTJ we offer No Win, No Fee Agreements on all types of Medical / Clinical Negligence cases.

 

If you have a query about a medical negligence claim and how No Win, No Fee works, please get in touch with me on 024 7653 1532 or email me at lynette.walsh@bttj.com

 

About the author

Lynette Walsh advises and represents clinical negligence claimants and has more than 14 years experience.  She is also an Accredited Member of the Association of Personal Injury Lawyers and Law Society Panel.

Action against Medical Accidents (AvMA) is a charity for patient safety and justice.  They provide support and  free independent advice to people who have been affected by medical accidents.

They have made the video below which highlights how they were able to help in a case of medical negligence.

 

BTTJ Solicitors Tom Barnes and Richard Stanford are both AvMA panel members.  If you feel you have suffered from medical negligence, please get in touch.

 

 

Concerns over operations performed by a Consultant Neurosurgeon at University Hospital in Coventry, Mr Hussien El-Maghraby.

Following a request to review four individual cases, Surgeons from the Royal College of Surgeons carried out an inspection in September 2017  where it has been suggested that they criticised two brain surgery operations where the patients went on to die.

Mr El-Maghraby was stopped from performing two surgical procedures consisting of complex spinal operations and brain surgery whilst the patients remain awake without further training and mentorship.

You can read the full BBC story here

 

With the introduction of the Civil Liability Bill into the House of Lords this week, the Ministry of Justice has produced their response to the report of the Civil Justice Committee (CJS) and has rejected the argument that there is insufficient evidence to overhaul how the discount rate in personal injury claims is set.

What is the discount rate?

Clinical negligence compensation awards are intended to put the Claimant in the position that they would have been ‘but for’ the negligence. In the most serious cases, the Claimant is awarded a lump sum to cover future loss of earnings, care and future treatment and is expected to invest these funds and receive a return to use for their future needs. The Discount Rate is a figure used to calculate how much Defendants should pay Claimants in cases of life changing injury.

On 20 March 2017, the discount rate was reduced from 2.5% to -0.75%, significantly increasing the amount of compensation that a Claimant could recover.

Why is the discount rate being reviewed?

There has been much debate given the reduction of the discount rate last year. If the discount rate is set too high, the value of the return will not keep up with inflation and the Claimant may not be adequately compensated. A Claimant with life changing injuries is likely to be financially dependent on the lump sum awarded for the rest of their lives. If the rate is set too low, the Claimant could be overcompensated with the taxpayer footing the bill.

So is the Claimant expected to look for riskier investments to achieve a better return and what return can be expected? The balance has to be struck.

The MOJ’s response to the Civil Justice Committee’s recommendations

Claimants have historically been treated as more cautious investors as they are expected to secure their future financial position.

The Government has confirmed that the overriding objective of setting the rate remains to support the 100% compensation rule, i.e that the aim is to neither under-compensate nor over-compensate the Claimant by ensuring that the Claimant receives the money that they are expected to need and that this is fair for both parties.

The Government has highlighted a need for Claimants to move away from a ‘risk-free’ approach which tends to ‘create excessively large awards of damages’ and that this is ‘unrealistic’. At the same time the Government shares the concern of the Committee that the setting of the rate should not result in significant under-compensation for the most vulnerable Claimant.

The government has not dismissed the proposal that setting different rates for different cases may be appropriate.

Although the decision to set the discount rate is likely to continue to rest with the Lord Chancellor, the Government has agreed with the proposal that an expert panel (comprised of an actuary, an economist, an investment manager and an expert in consumer affairs as relating to investments) will assist with the process of setting the rate. The Lord Chancellor’s report and the expert panel’s recommendations would be published at the same time once the rate to be set is decided.

Despite criticism, the government has advised of their intentions to continue to retain the proposed interval of review at 3 years, although it is unclear how this will work in practice given that the discount rate applies to the most serious cases which typically take 3-5 years to conclude.

The Lord Chancellor will however, at least be required to provide the reasons for setting the rate and the soon to be formed expert panel will have a role in analysing the data and considering actual investment behaviour.

The Government is particularly keen to encourage periodical payment orders and that Claimants are adequately advised of these as an option.

 

An orthopaedic injury refers to an injury of the bones, muscles and joints of the human body.

A practitioner specialising in orthopaedics will often look after patients that have suffered bone fractures,  who need joint replacement, ligament reconstruction surgery, hand, shoulder and elbow surgery, foot and ankle surgery and back and spine surgery.

Orthopaedic negligence is when a practitioner makes an avoidable error which causes injury to the patient. Examples of orthopaedic negligence include: inadequate assessment of a patient before surgery, surgical errors, including mistakes in placing prosthetic joints, using an incorrect treatment such as a partial knee replacement when a full replacement is needed, inadequate postoperative care leading to infection, misdiagnosing fractures, poor operative technique and damage to nerves or circulation due to medical procedure.

If you feel you have suffered as a result of orthopaedic negligence and may have an orthopaedic injury claim, please get in touch.

Our team of expert clinical negligence solicitors are on hand to advise you on the legal steps that are available to you.

 

Gynaecology is the medical practice dealing with the health of the female reproductive system.

Gynaecological treatment covers a number of areas including cancer, medical management of a chronic condition, surgery or post-natal care.

Most women will need gynaecological care once in their lives, the investigations and treatments carried out are all common medical procedures.

The main procedures that can lead to gynaecological negligence as a direct consequence of a practitioner’s incompetence are: removal of an ovarian cyst, pelvic organ prolapse, endometrial ablation, hysterectomy (full or part uterus removal), salpingectomy (fallopian tube removal), myomectomy (uterine fibroid removal), oophorectomy (ovarian removal), colposcopy, abortions, sterilisations and dilation and curettage.

Gynaecological procedures carry risks including but not limited to incontinence following surgery, perforation of the uterus during the insertion of a contraceptive coil, failed sterilisation, damage during laproscopic investigations or surgery, injury to bladder, bowel or uterus during hysterectomy, unnecessary hysterectomy following a caesarean section, defective consent to medical procedures and infection resulting in loss of childbearing potential and damage to womb or abdominal wall.

If you feel strongly that you have suffered a gynaecological injury as a result of treatment you have received or as a result of a failure by a doctor to diagnose a condition then you may have a potential negligence claim.

Our dedicated team of female solicitors will provide expert guidance to helping you succeed and win you the compensation that you deserve.

 

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.

consultation

Lord Justice Jackson’s review of civil litigation, including a recommendation for fixed recoverable costs in clinical negligence cases up to £25,000, has now been published and can be accessed here.

However the charity Action against Medical Accidents (AvMA) have called the civil litigation review disappointing and are concerned about the effects on patient safety as well as access to justice.

AvMA’s reaction is as follows:

AvMA is disappointed that Lord Justice Jackson’s report  fails to truly recognise the impact that imposing fixed recoverable costs on clinical negligence cases will have.
Although he recommends limiting the fixed costs regime to cases with damages of £25,000 or less, this represents the majority of clinical negligence claims. Included within this are very serious and complex claims including stillbirths and child deaths; negligent neglect of older people and claims for people with mental health and learning disability problems.
Clinical negligence claims are far more complex than personal injury claims and imposing fixed costs – no matter how long and inappropriately the claim has been defended – means that many of the claims will not be feasible. Even if a claimant did find a solicitor to represent them and won, they could end up losing most of their damages to meet costs which traditionally would have been met by the losing side.
Peter Walsh, Chief Executive of AvMA said:
“We are disappointed that Lord Justice Jackson has not accepted the evidence he was given and has not fully appreciated the unique challenge of clinical negligence claims. If fixed costs do go ahead it is imperative at the very least that there are exceptions for all fatal cases, cases including children and adults who lack capacity.
“We welcome the fact that if fixed costs for clinical negligence do go ahead, this should be via a ‘standalone’ scheme developed in collaboration between stakeholders. That is better than the Department of Health simply imposing its own rules.”
AvMA is concerned about the effect of the proposals on patient safety as well as access to justice.
Mr Walsh explained:
“Often it is only through people being able to challenge NHS denials through legal action that the NHS is brought to the realisation that it made mistakes. If people are not able to do that, it will mean opportunities for learning will be lost. Your hospital and mine will be less safe as a result.”

 

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.

 

Official figures released by NHS Litigation Authority, the body that deals with claims on behalf of the NHS, show that the NHS set aside £56 billion in 2016 to pay for medical mistakes made by their staff. This represents almost half of the total NHS budget of £116 billion. This figure is almost double the £31 billion put aside in 2014 and up from £665 million in 2005/6.

 

This revelation prompted Britain’s spending watchdog, the National Audit Office (NAO), to launch a 6-month investigation as to why this amount of money is necessary, with their findings due to be released in the summer of 2017.

 

The Society of Clinical Injury Lawyers (SCIL) is the body of Clinical/Medical Negligence Specialists that has been working hard to get the Government to look at the costs of Medical Negligence cases. SCIL have criticised the vast spend, with the cause being attributed to a culture of “defend, deny and delay”. They support the NAO enquiry, stating it is long overdue and critical for the safety of patients in the country.

SCIL estimates that of the 3,311 cases where the NHS was taken to court in 2015/16, the NHS paid compensation in 2,514 of those cases – 75.93 per cent. It is alleged that most of these cases should have been settled much earlier without the substantial costs of court proceedings and raises questions about the assessment the NHS makes when deciding whether to defend a claim.

 

Furthermore, the consequence of bringing so-called “indefensible” cases through the court system has resulted in Claimant lawyer’s costs being greatly increased when compared to reaching early settlement. The NHS Litigation Authority said that despite the number of claims falling by 4.6 per cent in 2016, claimant legal costs had risen by 43 per cent. The average cost to the NHS of settling at an early stage would be £2,650 but by fighting through the courts costs increase to £18,000.  This culture not only adds to its legal bills but also prolongs the emotional suffering for devastated patients and families.

 

If you need any advice on a medical negligence case, please call me on 024 7653 1532 or email me at angus.buchanan@bttj.com.  We offer free, no obligation consultations.

 

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.

 

A significant number of patients have been recalled as part of an investigation over the treatment given to cancer patients by urologist, and Channel 4’s Embarrassing Bodies’ doctor, Mr Arackal Manu Nair at Solihull Hospital (Heart of England NHS Trust) and the privately-run Spire Parkway Hospital. It is alleged Mr Nair operated on one man who did not have cancer, while leaving another incontinent and infertile.

 

Mr Arackal Manu Nair, otherwise known as Manu was suspended from his post as an NHS Consultant Urologist at Solihull Hospital when colleagues raised their suspicions about his surgery with hospital bosses and he was referred to the General Medical Council. He has subsequently resigned from his post at the Heart of England NHS Trust.

 

Concerns over Mr Nair’s operations have led to a recall of Mr Nair’s prostatectomy patients at Spire Parkway Hospital and BMI Priory Hospital, Birmingham. There are approximately 170 radical prostatectomy patients within the NHS who were treated at Solihull Hospital and Spire Healthcare group. A radical prostatectomy is a common surgical procedure to remove the prostate gland where patients are diagnosed with prostate cancer.

 

We understand that the central issues concern whether patients were properly advised and surgery was undertaken unnecessarily and the degree of the need for surgery. A prostatectomy is a fairly common operation for prostate cancer. It is an extensive operation to remove the whole of the prostate gland, but other treatment options are usually available, all of which should be discussed with the patient.

 

The Independent hospitals and the Heart of England NHS Trust asked the Royal College of Surgeons to review Mr Manu Nair’s surgical practices both in the NHS and the private sector. It was in light of the result of this review from the Royal College of Surgeons that patients were subsequently recalled.

 

The investigation into Mr Manu Nair’s practice has echoes of the investigations into the cases of ‘cleavage-sparing mastectomy’ by disgraced Solihull breast surgeon Mr Ian Paterson who performed hundreds of unrecognised operations at Spire Hospital at the Heart of England NHS Trust that breached medical guidelines and left women at a greater risk of breast cancer returning. Mr Paterson also performed unnecessary mastectomies, telling some patients they had cancer when they did not. Victims of Mr Paterson are stepping up their battle for justice and compensation against the Spire Hospitals by launching a petition. See the link provided for more information.

 

If you are one of the patients who had been recalled you may wish to do the following:

  1. Review the letter you have received following your recall.
  2. Do you wish to take the matter further?
  3. If so would you like an apology and/or compensation?
  4. Have you already lodged a complaint/spoken to solicitors?
  5. Call us to talk through your concerns

 

We would like anybody who was a patient of Mr Manu Nair to be aware of the issues concerning his work and to have the opportunity, not only to be reassured medically, but to be able to make an informed decision on their rights and available actions.

 

If you have been treated by any doctor or clinician either as an NHS patient, or as a private patient, and have concerns relating to your treatment then do not hesitate to contact our Clinical Negligence team for a confidential, no-obligation discussion and free advice.

 

We are able to offer a Conditional Fee Agreement (i.e. no win, no fee) or act under Legal Aid in appropriate circumstances.

 

Roseanne Elkington & Richard Stanford

Clinical Negligence

November 2015

References:

http://www.birminghammail.co.uk/news/midlands-news/heartlands-doctor-who-starred-tvs-10172871

http://www.birminghammail.co.uk/news/midlands-news/ian-paterson-cancer-surgery-victims-10101785

http://solihullobserver.co.uk/news/second-solihull-doctor-suspended-and-under-investigation-for-cancer-operations-6894/

http://www.itv.com/news/central/2015-10-01/embarrassing-bodies-cancer-surgeon-suspended-after-investigation-launched-into-treatment-of-patients/

http://www.bbc.co.uk/news/uk-england-birmingham-34418228

Mr H of West Bromwich received £25,000 in compensation from Sandwell and West Birmingham Hospitals NHS Trust following their failure to correctly manage his broken wrist.

 

Mr H, aged 34, was messing about a work during a lunch break. He went to punch a foam block when his friend took a step backwards, altering the point of contact. Mr H’s right hand was forced downwards when contact was made. His hand became cold and numb and he was in considerable pain.

 

Mr H attended Accident and Emergency at Sandwell General Hospital that day. He received x-rays which did not reveal any break. He was put into a plaster cast as a precaution and an appointment was made for him to attend the fracture clinic two days later. At the clinic the Consultant was suspicious that Mr H had suffered a fracture to his scaphoid bone (http://www.patient.co.uk/health/Scaphoid-Fracture.htm) which is common with this mechanism of injury and, notoriously, is rarely revealed by x-rays.

 

The treatment plan was for Mr H to remain in cast for 6-8 weeks. Five days later Mr H reattended the fracture clinic at the hospital. He was seen by a Trust Doctor (i.e. less well qualified than the Consultant he had seen previously). No additional x-rays were taken and the Trust Doctor decided there was no break. He decided to keep Mr H out of cast and provided a splint for him to use at night. Mr H was encouraged to mobilise the hand and returned to work at a factory, which involved manual work.

 

One month later Mr H returned to Accident and Emergency as he was in increasing pain in his wrist. Further x-rays and a CT scan were carried out which, by that time, revealed a minimally displaced scaphoid fracture. He was put back into a cast for five weeks.

 

One month later Mr H was seen again by the initial consultant who noted “I have seen him about two months ago with a suspected scaphoid fracture. He was put into plaster. Unfortunately following this he was taken out of plaster and mobilised. His fracture has now gone on to non-union.”

 

Mr H was referred to an expert wrist surgeon at Birmingham City Hospital. He underwent surgery three months later to fix the bone in the correct position. There was a threat he would need further surgery to include a bone graft which looks to have subsided.

 

Mr H recovered reasonable use in his hand although it will never be as good as the left hand. He instructed Brindley Twist Tafft and James to investigate the treatment that he received.

 

Expert evidence obtained suggested that had Mr H remained continuously in a plaster cast for an appropriate duration (6-8 weeks) on the balance of probabilities the fracture would have healed without further treatment and the surgery would have been unnecessary. His recovery period would have been shorter and he would not be left with a pin in his wrist which may later require surgery to remove.

 

The Defendant trust admitted the allegations made in that the original consultant’s treatment plan should not have been overturned by a more junior doctor. Settlement of £25,000 was negotiated which included the above factors under general damages. In addition Mr H had missed considerable time off work, been restricted on a family holiday and had been unable to assist his wife in caring for their baby.

Richard Stanford

Medical Negligence