Clinincal Negligence
What Is My Claim Worth?
Every case is different and the value of your case will depend upon the circumstances. However damages can be divided into two categories:
General damages
Damages can be divided into two categories:
(i) General damages.
(ii) Special damages:
(a) past losses
(b) future losses
General damages
This is an award of damages for the client's pain, suffering and loss of amenity. We value the general damages once we have had the opportunity to consider the Medical Reports. We can only claim compensation for the injury suffered as a consequence of the negligence, i.e. the additional injury the client would have avoided had her or she been treated appropriately. The value of a client's general damages is based on previous reported cases similar in nature to the client's. There are a number of reference books that record previous, decided damages claims. It is unlikely that a client's claim will "fall on all fours" with a previous case but such past, settled cases do offer a very good guidance as to what a client could expect to be awarded at a hearing/trial. Both parties (the injured party being the Claimant, the criticised clinician being the Defendant) have access to these reference books . So each party should have a similar view of the value of a claim.
One of the references we use to assess general damages is The Judicial Studies Board Guidelines for the assessment of general damages in personal injury cases. If you click on this link, you will have the opportunity to consider the type of awards you may be entitled to. Please note, however, that the Judicial Studies Board Guidelines is more relevant to straightforward injury claims such as road traffic accidents and accidents within the workplace, namely injuries which occur to a client who prior to the accident was fully fit. With clinical negligence claims, it is important to remember that the injured client was already receiving medical assistance for some medical problem.
Special damages
These are damages we can work out “mathematically”. We hope the following list will be helpful but it is not exhaustive.
Loss of earnings
If you are prevented from working in the short or the long term, you may be entitled to claim lost earnings. That is true irrespective of whether you are employed or self-employed. You will only be entitled to the loss net of tax an National Insurance contributions.
We will need to write to your employers even if you have been paid in full during your absence, as you may have a contractual duty to your employers to claim from the other party sums paid to you during your absence.
Public transport fares/taxis/lifts
You may have to make journeys to attend medical appointments and to receive medical treatment. You should keep a note of the journeys you make and the fares you pay. It would be sensible to keep receipts and tickets etc as proof.
You can also claim your petrol and other expenses and again it would be sensible to keep a record of those.
If you receive a lift from a friend or work colleague and make a payment for this, e.g. a contribution towards petrol, you should keep a note of the journey, the mileage involved and the payment made.
If relatives visit you in hospital or at home you may be able to claim their travel expenses so that you can repay them at a later date.
Medical fees
If you receive private medical treatment you may be able to recover the cost and you should certainly consider claiming. If you are a member of a private health insurance scheme (e.g. BUPA), you should inform us of the name and address of the insurers and your scheme or reference number, as the insurers may require us to claim back sums paid on your behalf. It helps us if you keep a note of any invoices forwarded to your insurers, for cross checking purposes.
Medication/prescription charges
It is sensible to keep a record of all prescription charges you pay for and a record of the date you make the payment.
A change of house.
If your medical condition becomes very much worse as a result of substandard medical treatment you may not be able to continue to live in your existing house. In that case you may be able to claim some or all of the cost of a change of house including incidental expenses.
Aids, equipment etc
We recommend that you keep a note of purchases and retain any receipts. Larger items of expenditure, eg an orthopaedic bed, may have to be backed up by a recommendation by a medical expert.
Household help
If your medical condition demands it, you may have to engage a “home help”. You may be able to claim the cost of this help provided it is reasonable. If relatives provide help for free, you should keep a note of the hours for which they helped and the dates on which they helped. Your ability to make a claim of this kind will depend on the facts of the case but we shall be happy to advise you.
Decorating/gardening/DIY etc
If you are seriously injured, you may require help withdecorating and gardening. A claim for these expenses requires a good deal of thought but we shall be happy to advise you.
Increased bills
If you are seriously injured, you may find that your gas and electricity bills have increased because you are spending more time at home. Depending upon the facts of the case you may be able to claim the increased electricity, gas and water charges.
Clothing
Depending on your medical problems you may require special clothing. You may also have increased laundry costs. The cost of these may be recoverable depending upon the facts of the case.
Other important points
State benefits
If, as a result of your injuries, you have received any benefits paid by the Department of Works and Pensions (DWP), you should let us know which benefits you have received and the approximate amounts.
Although state benefits are not deducted from general damages, certain state benefits may have to be repaid out of some parts of the special damages received. The section of the DWP which deals with this is known as the Compensation Recovery Unit. It is the Defendant’s responsibility to obtain a Compensation Recovery Unit Certificate from the DWP which clearly states the benefits you have received which they believe are as a consequence of the injuries sustained due to negligence. This is a complicated area which would be discussed further if DWP benefits had been received.
Other losses and expenses
The list set out is not intended to be exhaustive list of possible heads of claim. If you believe there are other losses or expenses which would not have occurred but for the negligence and the resulting injuries, detail any available documentary evidencet.
Evidence of losses
It follows, from the above, that you should keep records and documentary proof of special damages. It is up to you to be able to prove the extent of the loss to the court.
Award of compensation
Damages can be awarded or agreed either as a lump sum or as a series of periodic payments. The court can now order periodic payments even if the client would prefer a lump sum. This could happen if : -
• the matter goes to Court because the Claimant is a child under the age of eighteen.
• the Claimant cannot manage his or her own affairs or
• the matter proceeds to a final hearing/trial.