The 13-year-old Claimant in the case had been unwell with a viral illness at 17 months of age. He was seen in the A&E Department of Alder Hey Children’s Hospital having suffered a seizure and suffered a further seizure whilst he was there. He was sent home and returned to hospital a few days later. Despite this he was not diagnosed with the viral illness until some 5 days after he had first attended.

As a result of the delay in diagnosing his condition, the Defendant suffered catastrophic brain injuries which caused profound impairments and intractable epilepsy. This meant that he had very significant care needs and would need 24 hour a day care, a specially modified home and equipment, and specialist medical therapies for life.

Liability was admitted by the Defendant, with only one point remain in dispute between the parties namely whether or not the boy would have had some mild cognitive difficulties and epilepsy in any event.

The case settled and the award approved by the Court was worth in the region of £27.3 million. The award included a lump sum plus periodical payments throughout his life.

As the Claimant is aged under 18, the settlement in his claim had to be approved by the Court. You can find the details of the Court’s approval  of the settlement here: EXN-v-Alder-Hey-111121.pdf (judiciary.uk)

Chris Malone and the Powell & Co team have considerable experience and expertise in brain injury claims including but not limited to those relating to:

• brain injuries at birth leading to cerebral palsy
• delay in diagnosis of meningitis
• delay in diagnosis of brain tumours
• substandard medical treatment
• traumatic brain injuries

Legal aid may be available for claims involving babies brain injured before or during birth or in the first 8 weeks of life. In cases in which legal aid is not available, if we are able to assist, we usually offer a Conditional Fee Agreement (no win, no fee).

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Clinical Negligence and Personal Injury
The general rule is that you have have 3 years from the date on which you sustained an injury attributable to negligence to issue court proceedings. However, sometimes you may not be aware that your injury is attributable to negligence until a later date. In these circumstances, you will have 3 years from your ‘date of knowledge’ in which to issue court proceedings.

Claims made after the relevant 3-year period has passed are, in most cases, likely to fail on the basis that court proceedings should have been issued before the 3-year deadline. However, section 33 of the Limitation Act 1980 does give the Court discretion to allow claims to go ahead in limited circumstances.  When considering whether to exercise its discretion the Court will look at a number of different factors including the length of the delay and the reasons for it.

We would always recommend instructing a solicitor at the earliest possible opportunity so as to ensure that there is plenty of time for the solicitor to investigate the claim and secure the evidence required to prove the claim.  Sometimes this is not possible and so solicitors can try to negotiate an extension of the 3-year limitation period with the Defendant(s), if they are willing, in advance of the deadline expiring.

Exceptions to the Rule
Whilst the general rule of thumb is that claims must be brought within 3 years of the date of injury or the date of knowledge, there are exceptions to this rule. These are:

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Congratulations to Daniel Bonner on our Personal and Medical Injuries team who qualifies as a solicitor today. Daniel has over 7 years medical negligence experience and has now completed his training contract at Powell & Co. He will remain on the team specialising in medical negligence and personal injury claims. Congratulations Daniel!

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If you have suffered an injury as the result of substandard medical treatment then suing the NHS and making a claim for compensation may be an option you wish to consider. We realise that it can feel uncomfortable to sue the NHS and you may be worried about whether or not it is an ethical thing to do. Below we consider some of the questions commonly asked by our clients when they first contemplate making a legal claim.

If I bring a claim will it stop what happened to me from happening to someone else?
Our clients often tell us that one of the reasons they have decided to bring a claim is to make sure that what has happened to them does not happen to someone else. In other words, they want lessons to be learned by the Defendant in their claim and for changes to be made to prevent a similar mistake or accident from occurring in the future.

Claims made against the NHS are usually managed by NHS Resolution. Part of NHS Resolution’s role is to ensure that when something has gone wrong and a person has been injured, that the NHS learns from this “in order to improve and prevent the same thing from happening again”. This means that bringing a claim against an NHS Defendant can help to bring about positive change and improve standards of care.

Is suing the NHS unethical?
It is well known that there are huge demands on the NHS, particularly during the ongoing pandemic, but every patient is entitled to receive care that meets an acceptable standard. It is undeniable that the cost of the medical negligence claims brought against the NHS is significant and, theoretically, if that cost was lower, then more funding would be available for the provision of treatment. The difficulty with that is that if someone has suffered a serious injury as the result of substandard medical treatment it would be unjust for them not to be compensated for their injury. In some cases, depending on the nature and severity of the injury suffered, the individual may be disabled, requiring additional care and support that they did not need before. They may be unable to return to their job and in the absence of paid employment their only income may now be state benefits. Clearly the ethics of suing the NHS for compensation is a complex and nuanced matter and ultimately a personal decision for the individual concerned. Many people feel that it is only fair and just for injured people to be compensated. If injured in other circumstances, for example a road traffic collision, there would be little question about the ethics of claiming compensation.

Will the doctors or nurses who treated me get into trouble?
Clients sometimes worry that if they complain about their treatment or bring a legal claim that individual doctors, nurses or other medical staff will get in to trouble. It is very rare that substandard medical care is so bad that it brings the fitness to practice of an individual clinician into question. In most cases, a clinician’s career will not be adversely affected.

What is the alternative to suing the NHS?
Sometimes when you have received poor treatment suing the NHS Defendant isn’t the right course of action. For a claim to be successful the medical treatment needs to have: (1) fallen below the legally acceptable standard; and (2) the substandard medical treatment must have caused you to suffer an injury.

If you haven’t suffered an injury, making a legal claim for compensation is not appropriate, even if the treatment you received fell below the standard to be expected. In these circumstances, we would recommend making a complaint in writing to the healthcare provider.

Your letter of complaint needs to set out what happened and why you are unhappy. Your complaint should then be investigated and you should then receive a formal response to your complaint and sometimes, an apology. If you are not satisfied with the response you receive to your complaint, you may wish to ask the Parliamentary and Health Ombudsman to review it.

You can find more information about making a complaint about medical treatment here: How to complain to the NHS – NHS (www.nhs.uk)

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