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Pursuing and funding your claim
In order to succeed in a claim for damages for clinical negligence you have to show that:-
- You received substandard care;
- Such substandard care caused injury;
- The injury was significant (and possibly also caused financial loss).
It is necessary to prove all these elements. If one of them cannot be established, there can be no claim. If we agree to take your case on, we shall investigate the matter in detail. We consider your account of what happened and obtain copies of your medical records. We then request opinions from independent medical experts. When we have all the necessary information, we advise whether we think you are likely to succeed in your claim.
When contacting us, it will be helpful if you can provide:-
- An explanation of the condition you were being treated for;
- The nature of the treatment you received;
- The time and place of the treatment;
- Details of the treating doctor or other healthcare professionals;
- Why you believe that the care you received was substandard;
- What injury was caused;
- Details of any financial losses you have suffered;
- Information about your financial position and, if possible, whether you have legal expenses insurance cover.
Once we have investigated your claim we shall advise whether we believe that you have realistic prospects of success. If so, we shall present your case in as clear and thorough a manner as possible. If your opponent does not admit responsibility, we shall commence court proceedings and take the matter through to trial, if necessary, providing you with advice and support at all stages.
We shall instruct an experienced and specialist barrister to represent you at court. In complex cases, the barrister will be involved with us in the preparation of your case.
The value of your claim
We consider in detail the effects that the injury has had on you and seek such evidence as we need, including evidence from appropriate experts, to help us maximise the value of your damages award. We shall consider issues such as:-
- The cost of rehabilitation or further treatment;
- The nature of your care requirements and the cost of meeting them;
- Loss of earnings;
- The cost of special aids and equipment, from wheelchairs to touch screen computers if appropriate;
- The need for adaptations to your home or even the cost of a new home;
- Special educational needs;
- The need for help from therapists;
- Mental health or community care needs;
- Tax efficient settlement options.
We have experience of dealing with awards of damages which include both a lump sum and an annual tax free payment for life. In a catastrophic injury case, these structured settlements give our clients the security of knowing that there will be financial support available to help them meet their needs for life.
In cases where our clients are so severely injured that they are unable to manage their own affairs, we have experience in dealing with the Court of Protection and in acting as a Court of Protection deputy, in which capacity we provide continuing support to the injured person and the family with the management of damages after the claim has been successfully concluded.
If at the end of our investigation we advise that the claim is unlikely to succeed you will at least have received full information about what has happened and you will understand your situation more clearly than you did at the outset. In these circumstances we will explain our advice very carefully and will ensure that you understand the position fully.
Paying for your case
Generally speaking, if you win your case your opponent will pay your legal costs. If your case is unsuccessful, you will need protection against any liability to pay your opponent’s legal costs.
We consider funding options with you as part of our initial assessment of your case. We make sure that you understand what costs, if any, you might have to pay yourself. One of our specialist solicitors will advise you so that you can choose the best funding option for you. A brief summary of the options is as follows:-
1. Public Funding – Legal Aid
We are franchised by the Legal Aid Agency (LAA) to advise in clinical negligence cases. The availability of legal aid has reduced in recent years. In clinical negligence claims, legal aid is only available to people who have sustained neurological injury at or around the time of birth or within the first 8 weeks of life. Legal aid is not available for any other type of clinical negligence claim, regardless of your financial circumstances.
If your case is within the limited category described above, we can make an application on your behalf to the LAA for this type of funding. The LAA will decide whether it will support your case. If so, it will provide funding for an initial investigation. Further funding may be available if our investigation reveals that the claim has reasonable prospects of success.
2. Legal Expenses Insurance
Many people have legal expenses insurance available as part of their home contents, motor or travel insurance cover. Some banks and credit card companies also provide legal expenses insurance for their customers. Check whether you have this type of cover and if so contact your insurers to obtain a claim form. Some insurers require that claims for legal expenses cover are notified to them within a very short timescale so if you believe you have this type of insurance, you should act quickly to claim cover. We can discuss with the insurers whether we can act for you under the cover of your policy.
3. Conditional Fee Agreement
We can offer you a conditional fee agreement (commonly known as “no win no fee”) in certain circumstances. We may need to do some preliminary investigative work before we decide whether we can enter into such an agreement and we may ask you to pay for such work. If we need to do this, we shall let you know and obtain your agreement in advance. If we are satisfied that your claim justifies detailed investigation, we may enter into a Conditional Fee Agreement with you. We may well advise at the same time that you should take out a policy of insurance to protect you from liability for your opponent’s legal costs. We shall discuss the nature of this insurance with you in detail before making any application.
4. Trade Union or other funding
Some people may belong to membership organisations, such as trade unions, which provide members with legal expenses cover. If you believe that you may have access to this type of funding please let us know.
Our specialist lawyers will guide you through the process with care, keeping you informed of developments and pursuing your opponent vigorously on your behalf.