If your brain injury occurred as a result of negligent medical advice or treatment, it may be possible to bring a claim for compensation. This type of claim is known as clinical or medical negligence.
The claims process for clinical negligence
Bringing a claim for clinical negligence can be a lengthy process and your solicitor should keep you informed along the way as they gather the information required to bring a claim.
Whilst every case is different, in the initial stages claims tend to follow the same process. If you choose to contact one of our member law firms, here’s what you can expect:
- The solicitor will have an initial chat over the phone and arrange a convenient time to meet – whether at your home, in hospital or at their office. This initial consultation is completely free of charge.
- If your injuries prevent you from having this call you can ask a member of your family or friend to speak to a solicitor on your behalf.
- If the solicitor agrees there is likely to be a claim, they will discuss possible funding options for your case. Clinical negligence claims are most commonly funded through a Conditional Fee Agreement (“CFA”) commonly known as a ‘no win, no fee’ arrangement, but Legal Aid may be available for cases that involve neurological injury resulting in severe disability arising during pregnancy, child birth or within the first 7 weeks of life. Your solicitor will discuss all funding options with you before commencing any work on your behalf.
- Your solicitor will explain how they will build a case and the evidence they will need to collect. They will try to establish liability by, for example, collecting statements and medical records. They will also have to gather evidence as to the effects of the brain injury on your life, both in the short term and long term, to determine what financial compensation might be required. This could include reports from medical and neurological specialists, case managers, employment and educational specialists amongst others. For more information on medical reports see www.braininjurygroup.co.uk/news/brain-injury-claim-medical-examination/
- Clinical negligence cases can take a long time to settle, but our member solicitors might be able to secure interim payments to provide financial support for your immediate needs as well as funding for rehabilitation.
- Besides expert legal advice, our solicitors work with a range of other specialists who can provide you with additional support. This includes guidance on welfare benefits, financial advice and an immediate needs assessment, bringing practical help when you need it most. This is provided free as part of the package of support you receive when you pursue claim through us.
The time limit for bringing a claim for clinical negligence
The time limit for bringing a claim for clinical negligence is usually 3 years from the date of the incident, or the date of knowledge i.e. when you became aware of the mistake. There are exceptions to this for children, where the time limit is 3 years from their 18th birthday, and for those who lack mental capacity i.e. cannot make decisions for themselves.
Date of knowledge is defined as the point in time when a person first knew of all the following:
- that the injury in question was significant (they would reasonably have considered it serious enough to justify bringing legal proceedings against the defendant);
- that the injury was wholly or partly attributable to an act or failing on the defendant’s part;
- of the defendant’s identity; and
- of the identity of that person and any relevant additional facts, if it is alleged that the injury was caused by someone other than the defendant.
Date of knowledge is often the same as the date of the accident, but in cases involving clinical negligence it may not at first be obvious that the brain injury occurred as a result of negligent medical care; in which case, the date of knowledge will be deemed to be the date that the injured person might reasonably have been expected to discover themselves or with the help of expert advice, that the injury occurred as a result of negligent care.
Compensation Award for clinical negligence claims
Compensation, commonly referred to as damages, falls into two categories:
- General damages – these compensate for the pain, suffering and loss of amenity that you have suffered; and
- Special damages – these include past and future financial losses as a result of your accident: such as travel expenses to medical appointments, prescription charges, private medical treatment, loss of earnings and loss of pension, cost of housing adaptations, future care requirements, aids, equipment and mobility aids.
The purpose of bringing a compensation claim is to help you rebuild your life and to put you back into the financial position you would have been in, but for the accident.
Choosing a Brain Injury Solicitor
Brain injuries are complex by nature and the outcome in respect of recovery can be very difficult to predict. That’s why it is crucial to choose a solicitor who understands the complexities and nuances of brain injury to ensure that your claim is not undervalued and that you achieve fair compensation to meet your future needs.
Brain injury claims can take a long time to conclude; you need to be satisfied that your solicitor has the expertise in brain injury to be able to act in your best interests throughout a demanding case and to be happy to work with them over several years.
You can be confident that all our member firms have the legal experience you need, but you should still ask plenty of questions and talk to more than one solicitor to make sure the ‘fit’ is right and you are comfortable to confide in them.
How can the Brain Injury Group help?
If you have concerns about medical treatment you or a member of your family has received, email us at firstname.lastname@example.org or click here to find your closest Brain Injury Group member firm.
Each of our approved head and brain injury lawyers meet our very specific criteria and have proved their expertise in handling complex clinical negligence claims.