A brain injury can have the most devastating impact on the person who has suffered the injury, but the ripple effect on their family can also be life-changing even if that’s not immediately apparent.
Brain injuries can – and do – happen to anyone at any time of their life:
- children may be injured at birth
- a person could be involved in an accident at home, on the road, or at work
- the injury might be the result of an act, or omission to act, by the medical profession, or
- the injury may be due to an infection that was unavoidable and the fault of no-one
How Severe is the Brain Injury?
The first issue to determine at the outset of any potential legal proceedings is how severe a person’s brain injury is. A face to face meeting with your solicitor is essential and if any medical records and other relevant documentation are available, they should be given to your solicitor.
Meeting a brain injury Solicitor
The first meeting with the solicitor may be difficult: many questions will be asked, and a lot of information will be given to you at a time when there are lots of other things you need to deal with. You should make sure that the solicitor you choose to meet is a specialist in brain injuries and understands the very particular issues surrounding brain injuries. Ideally, they should be a member of a specialist panel such as the Law Society Personal Injury Panel, Law Society Clinical Negligence Panel, or the AvMA Clinical Negligence Panel. Some solicitors may also have medical experience such as a nursing or medical background.
If the injured person is an adult in employment at the time of the injury, your family will probably have several immediate concerns in addition to caring for your loved one including:
- financial issues;
- housing issues;
- employment issues;
- childcare issues;
The starting point in any potential claim is to ascertain what you, as the family of the brain injured person, want to achieve.
If you are pursuing a claim, then you must be made aware that the Court will have to approve any claim involving a minor or incapacitated adult.
It is also good practice for a solicitor to explain that the process can be long and stressful, which can apply further pressure to the family; especially those caring for the brain injured person; it is essential to discuss with your solicitor your personal motivation and expectations in pursuing legal proceedings, and you must understand what can and cannot be achieved through the litigation process.
Personal Injury Claims Procedure
If you have incurred a brain injury as a result of an accident, such as a road traffic accident or a fall at work, your solicitor will identify the insurer of the party at fault and will notify them of the claim by sending a ‘Letter of Claim’ which will outline why you believe the negligent party to be at fault for your injury, and will invite them to fund rehabilitative treatment for your injuries.
The insurer has three months to investigate the claim and respond with a decision as to whether they admit or deny liability.
If liability is denied, both parties may obtain their own evidence to prove or defend liability. If an agreement cannot be reached, the Court will be asked to decide who is at fault and whether there should be any reduction to the compensation paid if the claimant is partially to blame for the injuries sustained. For example, if a drunk driver crashes into a claimant’s car, but the claimant was not wearing a seatbelt and therefore sustained more serious injuries than would otherwise have been the case, then a reduction of 15% to 25% might be applied to the overall compensation award. This is known as contributory negligence.
If liability is established in your favour, your solicitor will still need to obtain evidence regarding your losses and evidence from various medical experts to quantify your injuries before your claim can be settled or assessed by the court. The quantification of losses is explained below in further detail.
Medical Negligence Claims Procedure
NHS Complaints procedure
If the brain injury is as a consequence of clinical negligence then there is always the possibility of the family bringing a complaint under the NHS Complaints Procedure. Under this procedure, any complaint made within 12 months must be investigated by the hospital involved and a written response provided. If the complainant is not satisfied by the outcome, the hospital may arrange for an independent review.
The NHS Complaints Procedure is quicker than a compensation claim and is more likely to produce an apology, but it cannot award compensation.
The hospital may have already investigated the matter and may have prepared a Serious Incident Report; it is always helpful for this to be provided to your solicitor if you have a copy.
If you have a copy of this report there will be no need to lodge a further complaint.
Duty of Candour
The NHS Trust also has a statutory duty of candour which…
“requires all organisations and those working in them to be honest, open and truthful in all their dealings with patients”.
This means that a patient must be notified of a ‘notifiable safety incident’. Failing to comply with these regulations is an offence that could result in the healthcare provider being fined up to £2,500. Documentation relating to this process can be requested and disclosed via the NHS complaints procedure.
Do you have a medical negligence claim?
You may bring a claim for compensation against the NHS Trust responsible for the hospital rather than the individual doctors.
If you received private medical care which led to an injury, then you will have to bring a claim against the individual doctor.
Under English law, you can only claim compensation for injuries and associated financial losses if you can show that it was the negligence of the proposed defendant that caused loss or damage ie the brain injury.
Negligence means making a mistake, which would not have been made by any reasonably competent professional in the relevant field. If some reasonably competent professional would have done the same thing, the claim will fail.
How Much Compensation?
You can claim compensation for the brain injury itself (called ‘general damages’) and for any financial losses, including future losses, caused by any negligence or accident (called ‘special damages’).
- General Damages
This is compensation for the pain, suffering and loss of enjoyment of life that resulted from the negligence/accident. Without a medical report on the full effects of the brain injury, your solicitor cannot estimate the value of this element of the claim. It is always better to have a medical report before agreeing compensation, so that everything is considered. The solicitor will organise obtaining the medical report(s).
It is usually helpful to keep a diary of the problems you and the brain injured person are encountering on a day-to-day basis because of the injury; this will assist in the preparation of witness statements and in briefing the medical experts once they have been formally instructed.
- Special Damages
The brain injured person may also be entitled to compensation for ‘special damages’, which may include medical fees, care and future care expenses, accommodation and/or adaptation costs, travel expenses, loss of earnings, future loss of earnings, relocation costs, and all other incidental expenses which have arisen as a result of the injury.
What your solicitor will do to achieve your objective
- Take your full instructions in relation to:
- The negligence/accident
- The brain injured person’s injuries
- The financial losses suffered as a result of the negligence/accident
- If the case proceeds it will be necessary for the solicitor to draft a full witness statement detailing all this information, from all relevant family members.
- Your solicitor should explain to you how funding the case is going to work – if legal aid is available (for children born with brain injuries), if a Conditional Fee Agreement is available or other methods of funding such as legal expense insurance (via household or other insurance policy).
- Your solicitor should obtain all the relevant hospital records, and any other relevant medical records, instruct a medical consultant so that a full report can be prepared on whether there was any negligence (in a medical negligence claim) or obtain all the relevant documentation from the Defendant in a personal injury/accident claim.
- Once all the evidence is obtained your solicitor will draft and send a Letter of Claim to the Defendant; they have 14 days to acknowledge the Letter of Claim, and 3 months to admit or deny liability in a personal injury/accident claim, extended to 4 months in the case of medical negligence.
- If the Defendant admits liability, your solicitor will endeavour to negotiate a settlement of the claim. If they cannot agree what the case is worth, then they will perhaps proceed to issue proceedings against the Defendant.
- Once proceedings are issued, your solicitor should pursue the case vigorously on your behalf. Hopefully it will be possible for a settlement to be reached before a full trial. If not, they will arrange representation for you at the trial, usually by a barrister.
How long will a brain injury claim for clinical negligence take?
It is very difficult to predict how long a clinical negligence/personal injury accident case will take. The factors that determine how long it will take include the clinical situation, the availability of the experts your solicitor instructs, and the attitude taken by the Defendant.
Usually once proceedings have been issued in Court, it will take up to two years to reach a conclusion. Proceedings cannot be issued until all medical evidence is obtained, a Letter of Claim served, and a Letter of Response received.
How long do I have to bring a claim?
You usually have three years from the date on which the injuries were sustained or from the date of knowledge. A child who has sustained a brain injury has three years from the date of their 18th birthday to bring a claim for damages. However, when a person sustains a brain injury they will often not have legal capacity to pursue a claim and the limitation period is extended. However, please note that if they regain capacity, the three-year limit commences.
If the injured person is under 18 years or age, or lacks legal capacity, a Litigation Friend (often a spouse, parent or family member of the person with the brain injury) is appointed to conduct the litigation on behalf of the brain injured person. If no one can undertake this duty, the Court of Protection will get involved with the case.
Many medical and non-medical experts will be involved in the case and may include:
- Consultant Neurosurgeons (adult/paediatric)
- Consultant Neurologist (adult/paediatric)
- Consultant Neuropsychiatrist (adult/paediatric)
- Consultant Neuropsychologist (adult/paediatric)
- Consultant Neuroradiologist
- Consultant Neonatologist (child brain injury cases)
- Care/Occupational Care experts
- Case Manager
- Professional Deputy
- IT/Technology specialist
- Accommodation Expert
- Consultant Neurorehabilitation expert
- Speech and Language Expert
You can find glossaries of legal and clinical terms that you may encounter in the Brain Injury Group brain injury legal and clinical glossaries.
Outside the litigation other professionals may also become involved such as social workers; carers/nursing staff; counsellors. Specialists will carry out assessments for funding; welfare benefit eligibility; care; alternative accommodation.
The list seems endless, and many professionals will become involved in the brain injured person’s life which can be very intrusive for other family members.
The most important thing is that everyone works as a team and always in the best interests of the injured person to allow them to live a life with disability and dignity.
Produced by Stephanie Prior RGN LLB (Hons), Partner & Head of Clinical Negligence at Osbornes Law
Stephanie Prior is a Partner and Head of Medical Negligence at Brain Injury Group member firm, Osbornes Law, who have offices in London. She is also a member of AvMA Clinical Negligence Panel, Law Society Clinical Negligence Panel, Legal Compliance Lead for Health Practice Associates and Member and Examiner of the Academy of Forensic Medical Sciences.
Osbornes Law have a large and well established clinical negligence team and specialise in brain injury claims. For more information about Osbornes Law, see the Brain Injury Group Osbornes Law profile.
What is the Brain Injury Group?
The Brain Injury Group exists to support individuals and families affected by brain injury and the health and social care professionals working in this specialist field. Our mission is to provide anyone affected by brain injury with access to advice on legal, financial and welfare benefit issues delivered by proven experts in the field who have been chosen not only for their skills and knowledge, but also for their passion and dedication to helping people.
How can Brain Injury Group help you?
If you have suffered a brain injury, our specialist lawyers can assist. You can find full details of Brain Injury Group members on our website or there are several ways to get in touch:
You can contact us:
- Call us on 0800 612 9660 or 01737 852203
- Email us at [email protected]
- Complete this short enquiry form and we’ll get back to you