Stewarts Law: compensation claims in the case of clinical negligence

Following on from our article about the myth of a widespread compensation culture, we would like to build on this by focusing in particular on clinical negligence claims.

We provide an initial consultation and advice free of charge. This enables someone who is affected by a spinal cord injury to obtain legal advice without any obligation, helping them from the outset of a very difficult time.

An early review can often identify potential claims for clinical negligence, even where there may have been no initial concerns relating to any medical treatment provided. Our expertise in this field often helps us identify potential claims. These can include delay in diagnosis or treatment, sub-standard surgery, misdiagnosis or misprescription of drugs or a failure to obtain informed consent. 

All medical professional s carry indemnity insurance precisely for these reasons. Everyone makes mistakes, but mistakes in medical care can have catastrophic consequences.  Where there has been negligence in the provision of medical care and treatment, we can help identify and bring a claim that can provide valuable compensation. This can assist with care and accommodation needs, medical and other expenses and lost earnings. It can help to provide financial security and the opportunity to maximise quality of life.

Clinical negligence cases can be complex and demanding but our experience and expertise in these cases enables us to obtain exceptional results for clients. We understand that the demands of those with spinal injury are substantial and complex and therefore handle much smaller caseloads than the majority of clinical negligence lawyers. This ensures a proactive and client-focused approach.

We recently settled a clinical negligence claim for Louisa Tempest who fell heavily whilst getting into a taxi to travel to a club during an evening out in Birmingham. She was a 20 year old Geography student at university and was taken into hospital by ambulance. The hospital staff negligently failed to properly assess her and allowed her to fall from a trolley whilst in A&E. A few hours later, a junior doctor failed to properly assess her neurological condition. The junior doctor wrongly decided to discharge her whilst she could not walk properly.

Her friend had to help her into a taxi.  Her friends were unaware that Louisa was at high risk of permanent spinal cord injury. Back at her friend’s student house, Louisa was lifted onto a sofa to rest. When she awoke, she could not move or feel any of her limbs. This was because severe spinal cord injury had been caused by the dislocation of unstable vertebrae in her unprotected neck. Her friends knew nothing about this risk. Proper care in hospital would have prevented any injury.

Louisa did not realise that she might have a clinical negligence claim. Whilst undergoing rehabilitation in her local Spinal Injuries Unit, she asked Stewarts Law to prepare a Power of Attorney to allow her family members to deal with her affairs on her behalf.

Frank Pinch, Head of Clinical Negligence at Stewarts Law, advised her that she may have a claim against the Hospital Trust because of potential failures to protect her neck and take steps to avoid the tragedy which occurred.

The potential case was investigated and independent experts supported a claim. The lawyers for the Hospital NHS Trust resisted accepting responsibility on behalf of the Hospital Trust for a lengthy period. Louisa’s accident occurred in October 2010; the Trust conceded liability in January 2013.

From that point, detailed assessments of her long-term needs were carried out. Negotiations resulted in the case settling in September 2014, just over three weeks before the trial date. The precise terms of the settlement remain confidential but the amount is significant and will ensure that Louisa can pay for her ongoing care, accommodation, therapies, equipment and medical treatment for the rest of her life.

Louisa commented, “The staff at Stewarts Law have always been so professional but also caring. After a long struggle, it was a huge relief to know that I will have financial security for my future; that I will be able to have the care that I need, plus adapted accommodation and equipment. It means a great deal to me to be able to realise my freedom and independence and get on with my life with the help of the financial settlement that Stewarts Law has helped me to achieve.”

For more information on how our Personal Injury and Clinical Negligence teams work closely together in order to obtain compensation for patients and their families who have suffered catastrophic or fatal injuries following negligent medical treatment, read more here.

More information about our work with SIA can be found here.

Stewarts Law: overcoming the myth of a widespread compensation culture

In our first three blog posts, below, we have discussed how we established the facts to build a claim for our spinal cord injury clients and support their lifelong care needs. However, many cases do not reach this stage.

A lot has been written about the rise of the ‘compensation culture’ that is facilitated by ‘no win, no fee’ agreements, which give more people access to the legal system. It is important to realise that such agreements provide the seriously injured with greater opportunities to seek compensation for wrongful harm.

There is a distorted perception that anyone who has suffered a personal injury can seek compensatory damages, when in fact, there needs to be someone at fault. Insurance is already in place to address such occurrences, whether it is an accident in the home, on the road or at work.

A potentially bigger social problem is that valid claims are not brought in the first place. Legitimate claims that are not pursued result in a cost to society, because they then require state funding of care.

The statutory level of care will be less than the level agreed to, and funded, as a result of an insurance claim because experts are often enlisted to assess the short and long term needs of the individual. There are often drastic differences in the calculation of the level of care required. A shrinking state in light of the current economic landscape puts extra pressure on the hours of care available at statutory level and therefore should be a last recourse for victims of accidents.

There may be a number of reasons why people do not bring a claim. One of the more common reasons we have experienced as specialists in personal injury claims is the hesitance some feel about bringing a claim against another family member or their employer. Claims may raise difficult issues those who feel reluctance to claim against someone who they are loyal or close to. We see this often with family members and members of the armed forces.

However, insurance is in place precisely for circumstances where the fault of anyone, a close friend, family member or employer, has led to serious injury. It is critical to realise the social importance of insurance claims where there is a viable claim to prevent people having to fund their loved ones’ own care. The risk should also be considered in monetary terms, where any concerns over someone’s no claims bonus, worth a few hundred pounds, needs to be weighed against a likely seven figure pay-out that can sustain the lifelong care required.

The story of the young and ambitious Issy demonstrates the need to face up to the reality of why insurance is in place. She was awarded damages which enabled her to fulfil her ambitions of travelling and going to university.

Issy was left paralysed from the neck down following a car crash when she was nine in July 2005. A car driven by her mother, Jennie Sale, veered across the Horning Road in Hoveton near Ludham, Norfolk, into the path of an oncoming van. Although she was sitting in the back with her seatbelt on, she sustained severe damage to her spinal cord, resulting in complete tetraplegia. Issy Sale, 17 at the time of judgment, will be dependent on a ventilator for the rest of her life and uses a chin-controlled electric wheelchair.

Issy and her family accepted the necessity of claiming on the insurance of a family member. The settlement provided for a lump sum of £3.2 million plus annual periodic payments for aids, therapies, 24-hour care and loss of earnings. The award is equivalent to £14 million over her lifetime.

Paul Paxton said: "Although this is a very large award, the money needs to last Issy a lifetime. Her needs are great but so too are her ambitions."

The second reason why people may not bring a claim is that they fear adverse implications for a friend or family member. It is important to understand that the insurance claim does not adversely affect the person you are claiming against. The admission of fault in a claim does not involve a criminal sanction.

Finally, another reason that someone may not bring a claim is because they do not want to put someone through a cumbersome process. The process involved is quite straightforward once fault is admitted. The most that the person responsible might have to do in a claim against them is provide a witness statement, as less than 10% of claims result in any court action.  

Following serious injury, people are entitled to seek peace of mind to know that they did everything in their power to recover some level of financial support to help them in the future.

To understand if someone has a viable claim, contact one of our experienced solicitors. [http://www.stewartslaw.com/services/personal-injury/spinal-cord-injury.aspx] who can discuss the case and advise on whether it can be progressed.

More information on Paul Paxton, Partner at Stewarts Law who specialises in complex personal injury claims, and led Issy’s case, can be found here.

Read more about our work with SIA here. 

Stewarts Law: compensation for spinal cord injury clients in the event of wrongful harm

In the third of our series of blog posts explaining the steps we have guided our clients through in the claims process, we discuss how the facts need to establish that a wrongful harm has occurred.

The process of gathering evidence that we have outlined in our first two blog posts forms the first stage.

The second stage is proving that the facts show that a breach of duty owed to the claimant by the defendant has occurred and that this led to the claimant’s injuries.

The test to establish a breach of duty is whether a claimant was exposed to a foreseeable risk of injury that could have reasonably been avoided. The court will examine all the circumstances of the accident in order to evaluate whether the defendant should have taken reasonable steps to reduce these risks.

For example, in a road traffic accident, the court will examine whether the defendant driver failed to exercise the level of skill and care that can, and should, be expected of a competent driver.

In Mr Q’s case, the detailed reports that we commissioned established that the family member breached a duty of care they owed to Mr Q and that this had led to the injuries he sustained. The facts outlined that the defendant had been driving with old tyres that should have been replaced long before the accident; there were likely warning signs from the tyres that should have prompted the driver to slow down or stop; and the driver should have been able to retain control of the vehicle despite the tyre blow out. This demonstrated on the balance of probabilities that the failure to address the foreseeable risk that the old tyres posed was a breach of duty that caused the accident and the claimant’s injuries.

Ms I, who suffered spinal cord injuries when she lost control of the quad bike she was riding, established breach of duty through extensive witness statements gathered from Iceland, Denmark, France and Italy. These supported the detailed evidence reports from quad biking safety experts that reported that the tyres were in bad condition and found that she had not received an appropriate level of instruction on how to operate the bike in the event of an emergency. The factors had led to the accident and the injuries of Ms I.

Although a court may find that the defendant was primarily responsible for an accident and injuries suffered by the claimant, it may also find that the claimant was also partly to blame. In such circumstances, the amount of compensation the clamant receives is reduced by a certain percentage to reflect the claimant’s own contribution to the accident or his injuries.

In the case of Mr N, he sustained severe injuries as a result of a road traffic accident. Proving that these injuries were not a result of Mr N failing to wear a seatbelt was a difficult hurdle to overcome without accident reconstruction evidence.

If it had been established that by not wearing a seatbelt, he had contributed to the severity of his injuries, his damages could have been reduced by 15 – 25%. The accident reconstruction evidence in Mr N’s claim established that the failure to wear a seatbelt was not causative of the type of injuries Mr N sustained. The damage to the vehicle was so severe; wearing a seatbelt would not have made any difference to the nature of his injuries. Therefore 100% liability was conceded.

Establishing the chain of events and building up an evidential picture is critical to establish whether a breach of duty occurred and whether this led to the type of injuries someone sustained. These two conditions need to be met in every claim for compensation.

Read more about our work with SIA here.

 

More information about our Personal Injury department at Stewarts Law, jointly headed by Paul Paxton and Daniel Herman, can be found here.

Stewarts Law: international fact finding to build a reliable picture of events

In our first blog post, we discussed how we established the facts to build a claim for Mr Q and support his lifelong care needs. The following case reinforces the importance of establishing the facts in an overseas accident where there are international witnesses.

We recently settled Ms I’s claim, who sustained a spinal cord injury during a quad biking excursion in Iceland. An international fact finding investigation was required to build up an evidential picture for the court and give the court as much information as possible to make an accurate finding on the facts.

Our client was required to participate in a quad biking excursion during a marketing incentive weekend to Iceland which was organised by her employer in conjunction with a specialist tour operator. The tyres of the quad bike she was riding were in a bad condition. She was only provided minimal instruction on how to control the quad bike.

The route for the excursion included negotiating a steep incline which led to a volcanic cliff edge. Our client lost control of the quad bike at this point, falling off the side of the incline to the quarry below. She had not been told about the emergency kill switch or instructed on what she should do if she found herself in an emergency situation.

As a result of the accident, our client suffered life changing injuries which left her with T6 paraplegia. She now requires a daily regime of paid care and assistance, as well as regular medical treatment and monitoring. Her home also needed to be adapted to better accommodate her day to day needs.

Stewarts Law issued court proceedings early on following a denial of liability and were able to speak with a number of witnesses from across Europe to form a clear picture of the arrangements for the quad biking excursion and what happened in the moments leading up to the accident. In addition, we instructed respected tyre and quad biking safety experts to establish what went wrong and what should have been done to ensure our client's safety during the tour.

Following service of the court proceedings, we were invited to an early settlement meeting during which we successfully negotiated a lump sum settlement of £2.9 million for our client.

This was a complex case which required extensive evidence gathering from Iceland and across Europe. We were able to call upon our established network of contacts internationally to trace and speak with witnesses in Iceland, Denmark, France and Italy. By acting quickly to preserve the evidence we ensured that our client was in a strong position to pursue her claim to a successful conclusion.

Our client was delighted with the result. Whilst we were ready to fight the case to trial, the early resolution of the claim has removed that stress and anxiety for her. The settlement means that she now has the financial security to obtain the lifelong care, equipment and treatment she needs as a result of her injuries.

 

Read more about our work with SIA here. 

More information about Julian Chamberlayne, Partner in our Travel Department at Stewarts Law who specialises in overseas personal injury litigation and led Ms I’s case can be found here.

Stewarts Law: establishing the facts for our clients with spinal cord injuries

Stewarts Law takes pride in working closely with clients to achieve excellent outcomes in spinal injury claims. From our Independent Living Advisors, who themselves are spinal cord injured, to handling substantial and complex cases, we ensure that we provide comprehensive support on all legal issues that arise following serious injury.

In the first of a series of blog posts by Stewarts Law, we explore and explain our approach to spinal injury claims.

The first post outlines the fact finding work Stewarts Law does to establish whether someone affected by spinal cord injuries has a claim for compensation.

All too often accident victims assume they do not have a case and do not think anyone else may be accountable for their injury. They may even think it was their own fault. Even if you are partly responsible or there were a number of people at fault, it does not mean you cannot recover compensation. We have won numerous cases when proving fault has at first appeared difficult.

We recently settled the claim of one of our most seriously injured clients for a lump sum of £1.6 million and annual payments of £370,000 to cover the cost of care and case management, despite contested liability issues. The annual payment, which will be made for life, is one of the highest ever recorded.

Mr Q was a passenger in a family member’s car which suffered a tyre blow-out and rolled several times. The accident occurred in Spain whilst the family was driving back to England from Morocco. Mr Q was left with C1 tetraplegia. He is unable to move any of his limbs and cannot breathe unassisted, but he retains full mental capabilities. The seriousness of his injuries means Mr Q requires 24 hour nursing care.

Julian Chamberlayne of Stewarts Law advised Mr Q that his claim could be brought against the driver of the vehicle in the English courts, as both the defendant and Mr Q were residents in England, making this a straightforward jurisdictional matter. If the driver was found to have caused the accident, his British insurer would be liable to pay Mr Q compensation.

Mr Q’s claim raised two main complex issues. The first issue was that the insurer denied the driver was at fault, attributing the accident to an unforeseeable tyre blow out. Julian and his team carefully investigated the accident, providing detailed evidence upon which findings could be made. The team obtained statements from witnesses and instructed an experienced accident reconstruction expert and tyre specialist to provide detailed reports. These reports advised that the old tyres should have been replaced long before the accident; there were likely warning signs from the tyres that should have prompted the driver to slow down or stop; and the driver should have been able to retain control of the vehicle despite the tyre blow out.

The second thorny issue was establishing the high level needs of Mr Q. Twelve medical and non-medical experts were also instructed to help identify the many ways in which the lives of Mr Q and his family had, and would, continue to be affected throughout his lifetime. Julian also arranged for Mr Q's rehabilitation to be co-ordinated by a highly experienced SCI specialist Case Manager to help deal with the multitude of issues that arose when Mr Q was discharged from hospital.

Stewarts Law ensured that Mr Q’s needs were fully addressed from his care to his financial settlement, bringing the Mr Q and his close-knit family peace of mind. It enables them to rent accommodation with a large enough ground floor for Mr Q, his family and his carers, including access from room to room during periods when Mr Q is bed-bound. The annual payment of £370,000 will be used to fund a high quality private nursing team experienced in caring for ventilated tetraplegic clients.

The settlement also contained two novel provisions which require the British insurer to reimburse Mr Q if he can achieve his dream of making a pilgrimage to Mecca and for future private hospital admissions lasting more than five days.

Read more about our work with SIA here.

More information about Julian Chamberlayne, Partner in our Travel Department at Stewarts Law who specialises in overseas personal injury litigation and led Mr Q’s case can be found here.