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by Anne Cassidy and Tim Spring, Moore Blatch LLP
In a small minority of cases the outcome of Encephalitis is made worse by sub-standard treatment. The most common problem is delay in recognising Encephalitis as a possible diagnosis, leading to delay in giving effective drugs, but other failures in this condition’s management can unfortunately also occur.
In the rare cases where recovery from Encephalitis is compromised by poor medical care there is a legal entitlement to financial compensation. Because Encephalitis can be such a serious illness, this entitlement can be of great practical importance both to the person who has been ill and their family.
How to start a medico-legal investigation
The first step is to contact a specialist solicitor, who should be able to give you preliminary advice without any charge or obligation. The Law Society’s website (www.lawsociety.org.uk) has a directory of solicitors; you can search by the legal issue and location. There are a number of things we would expect a solicitor to talk to you about at this very early stage and the following is a brief outline.
Obtaining the medical records
The medical records will show what the medical staff thought and did. This is very important evidence in working out whether the treatment was of proper standard. If there were visits to a GP before the admission to hospital, both sets of records will be relevant. Ultimately all medical records, including those made during rehabilitation, may be needed to give a complete picture.
Record holders (the GP surgery or the NHS Hospital Trust) should disclose a complete copy set of the records they hold, including any X-rays or scans, within 40 days of a proper request being made and for a charge of no more than £50.
Recording your own account of what happened
The other source of evidence about what happened during the illness is your recollection and the recollection of any relatives and friends involved. It is a good idea to make a note of how the illness started, how it developed and what the medical staff were told about it. Include dates and times and tell the story in as much detail as you can remember. The note does not need to be written in any formal way, but the earlier you write it the more likely it is to be accepted as accurate if there is any dispute about the facts of what happened.
The NHS complaints procedure
There is a well-defined NHS complaints procedure. The way in which operates may vary in quality from place to place but it can be a very useful method of exploring the issues. Many GPs and hospitals will do their best to give a clear and straightforward explanation of what they did and why, offering an apology if they believe anything went wrong. Many GPs and hospitals will also use complaints to learn lessons which will improve treatment of other patients in the future.
Importantly, any notes / statements / reports generated by the operation of the complaints procedure should be disclosed if it turns out there is a valid claim to be made.
The intention is that any complaint should be made promptly, within 12 months of the treatment. It is best to make the complaint in writing and in detail. You can address your complaint to the GP or the Chief Executive of the Trust which runs the hospital. All NHS Trusts have someone whose job it is to investigate complaints and prepare a response for approval by the Chief Executive. You and / or your solicitor should be patient but firm in pressing for a full reply.
If you think the reply you receive is inadequate you can take the matter further and involve the Parliamentary and Health Service Ombudsman (www.ombudsman.org.uk).
There is a duty on the GP or hospital to explain all this to you, with contact details.
The complaints procedure does not include any possibility of financial compensation and the NHS will not deal with a complaint if you are making a claim at the same time, but in some ways this is an artificial distinction. If you have concerns about treatment you are entitled to use the complaints procedure to find out how your doctors explain what happened. If you are not satisfied with that explanation, you are entitled to go on to make a claim for compensation using the extra information the complaint has given you.
Making a clinical negligence claim
To succeed in a claim you need to prove a departure from proper standards of medical care. You also need to prove that the end result of the Encephalitis is worse than it would have been with proper treatment. Most commonly, you need to show that any competent medical team would have recognised the possibility of Encephalitis earlier and that the outcome would have been significantly better with earlier treatment.
The standard of proof is lower than in criminal cases. You only need to show it is more likely than not you are worse off because of this departure from proper medical standards. You do not have to prove it ‘beyond reasonable doubt’.
How do you go about proving these things?
The answer is by getting independent medical experts to go carefully through the evidence about what happened - the medical records and your recollection - and to give a written report. An expert is a professional with enough experience in a particular field who provides specialist medical opinion on specific issues. It is important for your legal team to choose appropriate experts, instruct them properly and consider critically what they say.
The financial compensation
There are two elements to the potential compensation.
The first element is an attempt at compensation for the injury itself. On the basis that no sum of money, however large, can make up for a serious injury, Judges refer to a scale which has a top limit of about £325,000 for the worst brain injuries.
The second element is compensation for the financial impact of the injury on the particular person who has suffered it. The idea is to provide reimbursement for financial losses (such as loss of earnings) and financial expenses (such as the cost of care). This second element is the one which makes up the great bulk of the substantial settlements which are reported.
The mechanics of a claim
Once your legal team has established that you have a valid claim by obtaining supportive independent medical expert evidence, the process is essentially one of exchanging information, according to a timetable set by the Court, so that both sides can assess the strengths and weaknesses of their position and think about whether they should make or accept a settlement offer.
The first formal stage is to send a ‘Letter of Claim’ setting out your version of the facts and your allegations about what went wrong. The GP and/or the NHS Trust have 4 months to consider the Letter of Claim with their legal team and independent medical experts before replying with a detailed ‘Letter of Response’. This exchange of letters defines the extent of the legal argument. It is not unusual for significant admissions to be made at this stage but because the potential compensation is often very substantial most claims will go further before settlement. A Trust might, for example, admit that anti-viral drugs should have been given at an earlier stage but argue that earlier treatment would probably not have made any significant difference to the outcome.
The exchange of information will continue. You will see the doctors’ witness statements and your opponents’ independent expert medical evidence. A Schedule will be prepared to itemise loss of earnings, cost of care etc.
A date will be set for a Court Trial, but in the great majority of claims the evidence makes some compromise appropriate and a settlement is negotiated. Very few clinical negligence claims end in a Trial.
Funding a claim
A solicitor will discuss funding issues with you in detail. Many people are very nervous about legal costs, which is understandable but unnecessary. It is part of your solicitors’ job to make sure the investigation and any claim are dealt with cost-effectively, that you are kept fully-informed and that you are protected from financial risk.
The main methods of funding a claim are as follows:
Legal Expenses Insurance
If you have legal expenses insurance, and your solicitor believes your claim has reasonable prospects of success, your insurer will pay for the work which needs to be done up to an agreed hourly rate. Many people do not realise they have this insurance - your solicitor will be able to help you check.
Conditional Fee Agreement (“No win, No fee”)
A solicitor may agree to act for you on the basis of a conditional fee agreement, which means you will only have to pay for the work which is done if your claim is successful.
Legal aid is now limited to cases of severe neurological injury sustained during the first eight weeks of life.
This means paying for the work at an agreed hourly rate. Your solicitor should keep detailed records and give you regular updates.
Dealing with solicitors
You should think of your solicitor in the same way as any other person with a specific skill you are employing to deal with a particular problem for you. Solicitors who deal with clinical claims are used to dealing with injured people and should be sensitive to the stress and difficulties involved where a medico-legal investigation is being made against the background of a serious illness. They will be keen to make sure you understand what is going on and will value your contribution.
Clinical claims do take a long time. A period of three years from first enquiry to settlement would count as a quick resolution. It takes time to achieve a proper result because:
• the investigation has to be methodical if the evidence is to stand up.
• there is often a waiting-list for independent medical experts whose opinion is respected.
• there is often a lot of money at stake.
• your legal team cannot be sure what a fair level of compensation would be until it is clear both that the injury has stabilised and, for example, what the best arrangements are for any future care which is going to be needed.
• there is increasing pressure on Court time which makes it slower to put an enforceable timetable in place.
Most people receive a good standard of treatment when they become ill with Encephalitis. For a few people the long-term consequences of a very serious illness are made significantly worse by a poor standard of treatment. In those cases there will be an entitlement to financial compensation through a clinical negligence claim. That is not something to be undertaken lightly, but a successful claim can make a major difference to a family’s quality of life. If you want to explore the possibility of a claim you should speak to an experienced solicitor, who should be happy to give you preliminary advice without any charge or obligation.
The Encephalitis Society is the operating name of the Encephalitis Support Group which is a registered Charity and Company Limited by Guarantee.
Registered in England and Wales No. 4189027. Registered Office as above. Registered Charity No. 1087843.