No win, No fee It is unfortunate that occasionally injuries and medical conditions will be missed as a consequence of negligence within an Accident and Emergency department. Unfortunately, these kind of incidents often result in compensation claims because a misdiagnosis can severely impact the health of a patient.
Common Personal Injuries Experienced In A&E Departments
In the hustle and bustle of a very busy hospital, where staff levels and funding are often stretched to the limit, it is no surprise that errors do occur in A&E departments. However, the NHS has a legal obligation to maintain the safety and well-being of all patients no matter what the circumstances.
There are various common personal injuries which can occur in A&E departments which include:
- Missed fractures
- Misdiagnosed tendon injuries
- Failure to spot meningitis
- Misdiagnosis of sepsis
- Failure to diagnose and treat a heart attack
- Substandard care for back injuries
- Misdiagnosis of head injuries
Unfortunately this list is by no means inclusive but it does cover some of the more common injuries experienced while under the care of hospital Accident and Emergency departments. It is also worth noting that a number of NHS investigations have found the most frequent causes for patient injury in A&E departments came as a consequence of:
- Inaccurate reporting of test results.
- Failure to obtain full patient medical records.
- Failure to carry out a full patient examination.
- Failure to instigate further medical investigations such as x-rays, blood tests, etc.
- Failure to refer a patient to a specialist consultant/department.
- General delays in treatment.
- Injuries received in transit within the A&E department.
- Discharging patients early without a full medical assessment.
- Discharging patients with no advice or after-care.
In cases where there is negligence this will leave the likes of the NHS open to medical negligence compensation claims. As the NHS is “a self-insured body” any compensation awards will simply come out of the central NHS budget.
Consequences Of A&E Negligence
Unfortunately, in some cases patients will attend an A&E department with one medical condition and leave with either a significant additional injury or a worsening original condition. This can cover issues such as:
- Spinal injury – which if missed, or there is a delay in treatment, can lead to lower body permanent paralysis, severely impaired mobility and lack of control over body functions.
- Loss of sight as a consequence of foreign bodies not removed from the eye or delays in treatment.
- Severe head injuries as a consequence of misdiagnosed or missed symptoms of concussion.
Again, this is just an example of some of the more common injuries which tend to occur as a consequence of negligence in Accident and Emergency departments. In many ways this is a self-fulfilling prophecy because as medical negligence claims increase in number, compensation awards continue to rise which strips the central NHS budget of much-needed funding. We also have an ageing population, a need to invest in more modern medical equipment and many hospitals continually complain of staffing issues.
Who Can Make An A&E Compensation Claim?
There is a statutory three-year time limit in which anyone pursuing personal injury compensation can lodge a claim. The situation with medical issues is slightly different because if the medical condition is diagnosed further down the line then the three-year time limit will be reset from the day the diagnosis was received by the patient. This ensures that those with legitimate A&E compensation claims are not impacted by the fact they did not receive the appropriate diagnosis at the time.
There will unfortunately be occasions where a victim of medical negligence may not be in a position to pursue their own claim for compensation. In this type of situation a “litigation friend” would be appointed to pursue an A&E related claim on behalf of the victim. Very often this will be a loved one or family member or perhaps somebody from the legal profession. There are various procedures to complete when looking to appoint a “litigation friend” but in the world of medical negligence they are all too common.
How To Lodge An A&E Compensation Claim
Initially, the first action you should take in the event of receiving an injury as a consequence of an accident in an A&E department is to receive the correct treatment. The very fact that many cases of medical negligence revolve around misdiagnosis means that an appropriate diagnosis may take some weeks or months to come through. As soon as the injury or misdiagnosis is clear, and the relevant treatment has been administered, it is then time to put together as much evidence as possible.
Evidence of A&E negligence can include medical records, details of treatment received, a review of your treatment by a similarly qualified medical professional as well as witness statements and supporting photographs where applicable. As mentioned above there will be situations where the victim is not able to assist in gathering evidence at which point they will likely depend upon friends, family and acquaintances. Once the basic evidence has been collated, a timeline will need to be documented which will allow the claimant to record a full and frank account of the alleged A&E negligence.
Appointing A Medical Negligence Solicitor
If you haven’t done so already, after you have collated all evidence and details of the accident/misdiagnosis you should approach a medical negligence solicitor for further advice. The claimant may well need to undertake a further medical examination to clarify their injuries and developing medical conditions in order to support their claim yet further which a solicitor will be able to arrange locally.
If a medical negligence solicitor believes there is a good case for compensation they will in all probability offer their services on a No Win No Fee basis. Effectively the No Win No Fee option removes the liability a claimant would normally have towards the legal expenses in exchange for a “success fee”. Before any agreement is signed however you should always clarify exactly what fees you will be paying whether you claim is successful or unsuccessful as these may vary from company to company.
Once a solicitor has been appointed then it is simply a case of lodging the A&E compensation claim with the courts and forwarding a copy of the claim and supporting evidence to the defendant.
Out-Of-Court Settlements
While medical negligence is often a difficult area to prove beyond reasonable doubt there are occasions where it is blatantly obvious that there has been negligence by an A&E department for whatever reason. In these situations the medical body responsible will likely seek to negotiate an out-of-court settlement. This will not only limit ongoing legal fees for the defendant but also ensure that the claimant receives their compensation settlement in a timely manner.
There may well be instances where negligence by an A&E department is disputed or perhaps there is more than one potentially negligent party. In these scenarios it is more likely that the case will go before the courts where the judge will review all evidence offered by the defence and claimant and make a ruling. Shared negligence also equates to shared liability to cover any compensation claim awarded by the courts. It is worth noting that while many people automatically assume an inability to prove an individual level of negligence on behalf of different parties may scupper their claim, this is not the case. It is up to the courts to review the potential liability of those parties mentioned in the claim and not the responsibility of the claimant.
Types Of Compensation Available
Any compensation awarded for A&E negligence will consist of what is known as general damages and special damages.
Starting with General damages these relate to financial compensation for injuries/misdiagnosis and the impact on the individual. This will take in issues such as:
- The degree of pain and suffering
- Any life altering injuries
- Psychological trauma
The Judicial College has an unofficial role to play when calculating compensation awards for A&E negligence because it regularly publishes historic claims and awards for specific injuries. While these guidelines have no legal standing in law, they are well respected by the courts, law firms and insurance companies and form a basis from which to calculate any compensation award. General damages offer some amount of variation/discretion over compensation guidelines which enable the courts, claims solicitors and insurance companies to reflect the specific nature of each individual A&E negligence claim.
The other type of compensation is special damages which are very different from general damages in the fact that they are simply financial redress for expenses incurred as a consequence of the incident in question and any future funding requirements. In broad terms special damages will take in issues such as:
- Loss of earnings
- Future loss of earnings
- Medical expenses
- Future medical expenses
- Adaptions to the home
- Additional transport costs
There is no room for discretion/variation in this instance as special damages are a simple financial calculation. When looking to calculate future funding requirements, the courts, insurance companies and solicitors will take advice from appropriately experienced personnel.
Holding Negligent A&E Departments To Account
We have seen occasions in the past where No Win No Fee arrangements have received highly critical press coverage but many people fail to appreciate the wider picture. In the short term these arrangements are for many people the only financially viable option to pursue compensation to which they are rightfully entitled to.
There is also the longer term picture, the fact that unless negligent A&E departments are held to account they are unlikely to revise their working practices or improve their safety record very quickly. It is only when corporations are hit in the pocket that they feel inclined to review their procedures and ensure they are not left open to further compensation claims in the future.
If you have suffered misdiagnosis or injury because of a negligent A&E department call us today to speak with a medical negligence solicitor for expert advice.
