Each year thousands of people in the UK receive treatment for backpain and back injuries and a substantial number go on to suffer from iatrogenic injuries - injuries that result from the treatment itself.
BackCare receives many enquiries from patients concerned with the quality of their medical care. Now we are launching a clinical negligence advice helpline, supported by a special interest group of solicitors who are professional members of BackCare and who are experienced in pursuing clinical negligence claims.
BackCare's aim is to ensure its members receive expert advice and compensation if there is an entitlement. In addition, it intends that the information gathered as a result is used to inform healthcare professionals. This may help to ensure that standards of treatment are raised and potentially harmful or less effective practices are abandoned.
When
can a claim be brought?
A claim is possible when medical care falls below an acceptable standard
and injury results. A patient is injured as a result of a treatment error
if an entirely new problem is caused or the error gives rise to a delayed
or incomplete recovery.
Did
the treatment error cause an injury?
The answer to this question is not as easy as it may seem. The victim
of a car accident will have no doubt about how and when an injury occurred.
In the case of a medical error, however, the injury may be masked by the
underlying condition for which treatment was initially required.
For this reason, an
independent medical expert will, in most cases, be required to express
an opinion on the standard of care provided and the extent of any injury
caused or materially contributed to by the error.
Calculating compensation
Damage awards have four components:
Pain,
suffering and loss of amenity
- This is calculated by reference to what the courts have decided in previous
cases. An award for a serious back injury might well be in the region
of £l00,000.
Past loss - This includes out of pocket
expenditure and any loss of earnings, as well as the cost of any equipment
purchased and the notional value of care provided by relatives and friends.
Future loss - This is calculated by
working out the present value of expenditure or loss to be incurred in
the future.
Interest - Interest on pain, suffering and loss of amenity is awarded at the rate of 2% from the date proceedings are served, and on past loss up to 8% from the date of injury.
How
quickly should a claim be brought?
A claim should be brought within three years of the date of the injury-causing
error, or within three years from the date it was known (or ought to have
been known) that a significant injury was attributable to an error. This
means that claims can be brought later than three years when the patient
did not know, and could not reasonably have known, that an injury was
attributable to a treatment error.
What
happens before legal proceedings?
The first stage is to obtain the relevant health records so that an expert
can report on the standard of medical care and present condition and prognosis.
Based on the expert evidence, the case is set out in a letter of claim
so that the defendant can investigate and decide how to respond.
The defendant has three months within which to conduct his or her own investigations and reply to the letter of claim, accepting or denying the responsibility with reasons. If responsibility is not accepted, it may be necessary to issue and serve legal proceedings.
Many cases are settled at this stage, if not before. Only a tiny minority of cases proceed to Court.
Litigation
funding
Initial consultations and assessments through BackCare's
helpline are provided free. After that, all funding options will be considered,
including:
- Your existing
insurance policies which may entitle you to legal cover
- Your eligibility
for Legal Aid
- The possibility
of a conditional fee arrangement - the so-called 'no win, no fee' agreement
whereby your solicitor receives a success fee in addition to his normal
fee if you win, and nothing if you lose.
- Whether you can pay privately - although litigation is expensive and can be risky, and the private funding of a claim is unlikely to be a viable option except for the extremely well off.
How do I contact the helpline?
Simply call freephone 0800 0854333
Be ready to provide brief details of the treatment you received, the date you received it and the problems you believe you experienced as a result, plus a telephone number and time it would be convenient for a solicitor to contact you.
Tim Spring (professional member of BackCare)
Moore & Blatch Solicitors.
The Law Society also provide names of accredited solicitors experienced in dealing with clinical negligence
cases.
Link to Law Society Website
Editors' note: Please bear in mind that litigation and giving evidence can add to your stress and pain levels and affect recovery or improvement.
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