It is possible to make a claim for compensation following a brain injury if the injury has resulted from negligent errors in medical advice or treatment. These types of claims are known as clinical or medical negligence claims.
The prospect of bringing a claim may seem very daunting during what is already a difficult time, even more so when you or a loved one has suffered a life changing brain injury. The initial steps are often the hardest. Not only have you got to come to terms with yours or a loved one’s brain injury, you have now got to plan for a very different future.
Where to start with a clinical negligence claim?
Solicitors have the specialist knowledge and expertise to advise and guide you through making a claim and so the best place to start is by contacting a law firm that specialises in clinical negligence, particularly those with experience in brain injury cases.
If you are unsure on which firm to approach, there are organisations such as The Brain Injury Group which can provide recommendations of solicitors with specialist expertise in brain injury claims to help you decide.
An initial meeting with a solicitor about a clinical negligence claim is commonly free of charge. Most solicitors can offer you a way of funding the legal costs without direct charge to you, such as with a ‘no win, no fee agreement’ or through existing insurance policies that you may have at home. Legal Aid is also available for claimants that have suffered a brain injury in the lead up to, or at birth, or in the 8 weeks following birth.
It’s not always possible for a solicitor to advise you on whether you will win or lose your case straightaway. All of the facts and evidence needs to be gathered before they can make a thorough assessment of your prospects of being successful. However, an experienced solicitor will usually be able to tell you where the areas of suspected clinical negligence lie and whether there is enough strength in your case that you should pursue it.
How do I bring a clinical negligence claim?
Generally the key stages of bringing a claim are:-
- Obtain medical records
Your solicitor will obtain and review your medical records to piece events together and consider what the potential areas of negligence are.
- Witness statements
Your solicitor will have a meeting with you and your family to take statements of your recollection of events. These statements will be used as evidence in support of your claim and can often be vital in proving a case.
- Obtain expert opinions
Independent medical experts who specialise in the discipline of medicine to which your claim relates will be instructed to provide reports on whether there has been any negligent care, and if so, whether this has caused or contributed to your brain injury.
For example, an expert Consultant Obstetrician may be instructed to report on what happened during pregnancy or delivery of a baby born with a brain injury. Or an expert Stroke Physician may be used to advise on whether there has been a negligent delay in treating the symptoms of a stroke. Other types of experts may be instructed to advise on how the brain injury has affected you, and what you need for the future.
- Meeting with the experts
Sometimes it is necessary to meet with the experts to discuss the case in more detail. This involves instructing a barrister to conduct the meeting and question the experts on their opinions so that all the important points are explored.
- Letter of Claim and Letter of Response
Once your solicitor has collated all of the necessary evidence to prove your claim, they will send what is known as a ‘Letter of Claim’. This letter will be sent to the Defendant and sets out the details of the claim, allegations of negligence that the Defendant has to answer, and a summary of what compensation will be claimed.
The Defendant must then send a ‘Letter of Response’, which will set out whether they admit or deny the allegations of negligence. If the allegations are admitted your claim will move towards settlement and your solicitor will work on quantifying your claim. If it is denied or partially denied, it may be necessary to issue court proceedings.
- Court Proceedings
Your solicitor will draft a claim form and issue your claim at court on your behalf. The proceedings are then ‘served’ on the Defendant. The Defendant then has to provide a ‘Defence’ which will contain details of how it intends to defend the claim. Once this has been done, the Court will set a timetable towards a trial.
Your legal team will then work on finalising witness statements and all expert reports before they are exchanged with the Defendant. At every stage, there is a possibility of the claim being admitted by the Defendant, or an offer of settlement being made. Your solicitor and barrister will be assessing the strengths and weaknesses of your claim as you move towards a trial, and advise you fully on your options.
- Settlement or Trial
Clinical negligence claims are often settled during negotiations out of court, or at a ‘Joint Settlement Meeting’ where the legal teams meet face to face to discuss the case. At this point, an amount of compensation is agreed. You will be involved at every stage and give instructions to your solicitor on accepting or rejecting an offer.
If a settlement can’t be reached, but your solicitor and barrister consider your case remains strong, then it will go to a Court trial where a Judge will decide if the claim is successful. If so, an order for compensation is made.
How long will a clinical negligence claim take?
In clinical negligence claims, by law you have 3 years from the date of injury, or date of knowledge of your injury, to start a claim at Court. This is known as the limitation period. For a child, the 3 year period starts to run from the date of their 18th birthday, meaning that they have until their 21st birthday to start the claim in Court.
There is an exception to the usual 3 year rule if a person does not have the mental capacity to instruct solicitors and pursue a claim on their own behalf. This can often be the case where the person has suffered a brain injury affecting cognitive function, memory and intellect. In this situation, no time limits apply unless mental capacity is regained.
Brain injury claims are usually very complex and involve a lot of investigation. It may take 12-18 months, to collate the necessary expert opinions.
How long a case takes from there depends on how the Defendant responds to it. If the claim is defended and it becomes necessary to take the case to Court, it could take a further 2-3 years, or longer if the case is particularly complex or involves a young child, before a conclusion is reached.
What can I claim for?
The aim of compensation is to put a person in the position they would have been in had the negligence and injury not occurred. Financial compensation is aimed at providing the individual with the best care, equipment, therapies, adapted accommodation and other things necessary to achieve the best recovery possible and an ability to live independently as they can. Specialist experts will assess what the individual’s future needs will be to ensure a substantially better quality of life and the necessary financial security for the future.
Examples of what can be claimed:
- Care costs
- Treatment and rehabilitation
- Medical costs
- Loss of earnings and pension
- Loss of services (e.g. housework, gardening, travel)
It is a good idea to keep a track of any expenses that have been incurred as a consequence of suffering a brain injury as this will help your solicitor in calculating your financial losses.
Compensation for the pain, suffering and loss of amenity arising from the brain injury itself can also be claimed, known as ‘general damages’. Brain injury claims often attract the highest general damages awards due to the huge impact a brain injury has on someone’s life.
Produced by Laura Cook, Senior Associate at CLmedilaw
Laura Cook is a Senior Associate at Brain Injury Group member firm, CLmedilaw, who have offices nationwide. CLmedilaw have a large and well established clinical negligence team and specialise in brain injury claims. For more information about CLmedilaw, see the Brain Injury Group CLmedilaw Oxford profile.
Find full details of our members on our website, or email us firstname.lastname@example.org
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.
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