A brief guide to legal claims
A brief guide to legal claims
If your baby has been injured by GBS (or worse, they did not survive the infection) it is possible to bring a legal claim for compensation if you believe that there were mistakes in the medical care.
It is not essential to have brought an NHS Complaint first, although a Complaint can provide useful information for the legal claim. Furthermore, if you may be entitled to legal aid, the Legal Aid Agency generally insist that you must have already brought a Complaint before they will consider funding the case.
It must be remembered that it is not possible to sue for – an explanation; an apology; changes to be made within the health provider; those responsible to be held to account; or for a full investigation, only for damages (compensation). However, one or more of those other outcomes may result from the legal claim in any case – you simply have no legal power to compel them. This is why a Complaint followed by a claim can often be a combination which attempts to give patients everything they seek.
What must be proven?
Here, the hurdle for establishing fault is rather higher than it is in the Complaint process. A civil claim depends on negligence being established. This has four main tests:-
- That you are owed a duty of care, namely that the individuals or organisation you will be suing have a legal obligation to look after you (in medical claims, this will almost always be established).
- That there was a breach of that duty, namely that those looking after you acted in a way that no reasonable doctor, nurse, midwife etc would think appropriate.
- That causation will be established. That is, there must a link between all or part of your injuries and the poor care, rather than a situation where largely the same injury would have arisen anyway even if the treatment had been acceptable.
- That the injury is significant enough to justify damages. This is not strictly speaking part of the legal test of negligence, but in real life both courts and those who might fund the claim will consider whether the cost of legal action is proportionate to the likely compensation.
All of the above must be established. In Group B strep claims the test of causation is often raised by Defendants, so that any lawyers representing you may need to rebut a frequently-encountered argument that this infection progresses so quickly and with such devastating effect that even had it been diagnosed earlier, and/or antibiotics given sooner, the outcome would have been largely the same anyway.
The law of medical negligence (now usually called ‘clinical negligence’) sets time limits for bringing a claim. ‘Bringing a claim’ does not mean initiating an NHS Complaint; telling the hospital or GP surgery that you are thinking of legal action; or contacting a solicitor. Rather, it refers to starting legal proceedings at court, generally called ‘issuing the claim’, and a number of preliminary steps need to be achieved before that can happen.
For adults, the deadline is 3 years. Time starts to run either from the poor medical care or, in many cases, when you might first have realised that you had an injury and that it may have arisen from substandard treatment. For those under 18, no matter when in their life the poor treatment occurred, the 3 years do not start running until they turn 18 and so for the majority of GBS claims (where the infection generally arises either at birth or shortly afterwards) there will be 21 years in order to take action. Despite that, for practical reasons it is sensible to seek advice as soon as you can.
Who can help?
Although it is not in any way essential to contact a solicitor before bringing an NHS Complaint, for a legal claim it is highly advisable. The law does allow injured patients or their families to represent themselves without a lawyer but the principles of negligence are extremely complex and these ‘litigants in person’ can face real difficulties, potentially at cost to themselves.
Although you are perfectly entitled to instruct any solicitor you wish, if your child’s claim is to have any real chance of succeeding, it is highly advisable to speak to someone with a known track record of GBS litigation. Group B Strep Support have a panel of law firms whose expertise has been recognised and it is suggested that you select a lawyer from one of those firms on the GBSS website.
Any reputable solicitor will discuss all of the options with you at the outset at no charge and should answer any questions you may have. Remember that simply telephoning a solicitor for a discussion does not mean that you have instructed them. Taking that further step is entirely up to you and instructing a firm will not occur until you are completely happy with that option and have agreed in writing to do so.
How is it all paid for?
If having discussed matters with a solicitor you are told that you may have a good claim, and you do wish to proceed in that way, your lawyer should discuss the four possible ways of funding a claim.
- Private Funding. It is extremely unusual for the client to be asked to pay for all or any part of their own claim, and so this is often seen as a last resort and only if the client agrees. Clinical negligence claims are lengthy and complex and can involve a number of expensive disbursements, such as experts and court fees.
- ‘Before The Event’ insurance. This is where you already have insurance cover which will fund a claim of this nature, often as part of buildings, contents or car insurance. However, you will need to move quickly – most insurers insist on being notified within a particular time (usually 6 months) after the incident.
- Legal Aid. In April 2013 legal aid was withdrawn for almost all clinical negligence claims. It is now available for only one type of claim, although one which fortunately does usually include Group B Strep claims. This is where a child has suffered a neurological injury during pregnancy, birth or in the first 8 weeks of life and has been left severely disabled. Solicitors on the GBSS legal panel have found that the injuries usually arising from GBS infection are accepted by the Legal Aid Agency as being ‘neurological’ so legal aid is very often available for these claims.
- Conditional Fee Agreement. This is often referred to as “no win – no fee” which means that if you do not succeed in your claim you will not be asked to pay anything. However, if you do win there will be a number of deductions from your damages to pay for a proportion of your own legal costs and possibly for part of an insurance policy, the latter being necessary to fund experts and any court fees.
Will it be worth it?
Any compensation you or your child may receive if you are successful depends on a number of factors, many of which will be very uncertain at the outset, and so to begin with your solicitor may only be able to give you a very approximate idea of the value of the claim. Although there are often a number of exceptions, many claims arising from GBS infection generally involve three types of injury:-
- The first is where negligence occurs during the process of diagnosing and/or treating the infection, so that the patient needs to undergo additional and sometimes painful or intrusive intervention but then survives without any permanent harm. Although claims of that nature have been successful in the past, changes to the law introduced in 2013 mean that the likely value of these (perhaps £3,000 – £6,000) are not now thought to be high enough to justify the expense of legal action. It is very unlikely you will be granted funding for this type of claim.
- If the baby or child dies from GBS, unfortunately the law has set a very modest limit on the damages that can be won by his or her parents for their grief and bereavement. This currently stands at £12,980, together with any funeral costs and incidental expenses such as the parents’ lost earnings.
- In cases where the baby or child survives but is left with severe neurological problems such as brain injury, damages will depend entirely on a combination of the extent of that; the day to day needs such as care and equipment; and the anticipated life expectancy. Compensation in the more severe cases can run into seven figures although your solicitor will be able to advise you on the specifics of your case.
This is a brief summary of a complex topic and Group B Strep Support and/or any of their panel solicitors will be happy to advise further without any obligation.
For further information and advice contact our specialist medical negligence team on 01392 207020 or email: firstname.lastname@example.org
What clients say
My son suffered from GBS sepsis and has been left with lifelong disabilities, it was such a traumatic time. I spoke to Stuart Bramley at Tozers, he was absolutely fantastic – he is incredibly knowledgeable and the most genuine sincere person I have spoken to about this. I couldn’t find anyone who knew so much about the condition as him, he was very patient and so keen to help, it was a great relief to have spoken to him and I would urge anyone who has issues with their care or feels things could possibly have been different to give him a call.