Accident and Emergency (A&E) is the first point of call for serious illnesses and trauma. All large NHS hospitals have an A&E department whose role is to quickly diagnose, treat and/or refer patients to an appropriate department if the patient cannot be treated in A&E.
A&E doctors are under great pressure to treat patients quickly and safely. The law says that junior doctors are to be judged in the same way that their experienced colleagues are to be judged. The law does not recognise that many A&E junior doctors are in the midst of a learning curve and may be somewhat inexperienced. This can lead to mistakes being made and negligence occurring.
If you or someone you love has suffered harm as a result of negligent treatment by an A&E department then you may be able to make a claim for your injuries and financial losses. Our specialist medical negligence solicitors have vast experience in bringing A&E negligence claims. Contact the team for Free Consultation
Breach of duty of the required standard of care is a legal term that refers to the level of competence to which A&E doctors have to conduct themselves, when treating the patient. A&E doctors are frequently not required to make a definitive diagnosis but they are required to put the patient onto a pathway ( i.e by way of tests or scans) that will lead to a definitive diagnosis.
For example, a patient attending A&E with stomach pain has over 100 differential diagnoses. Pain in the abdomen can be due to something benign, or it could be a fatal condition that needs immediate surgery. A skilled clinician can identify the source of abdominal pain from the history alone 80 to 90% of the time. To achieve that goal requires a thorough understanding of the abdominal diseases that produce pain, and the pathways over which it is transmitted.
Many patients in A&E do not have life-threatening conditions, but a tiny minority will do. It is the job of the A&E doctors and nurses to appropriately triage patients so that the most urgent cases are seen quickly.
The specialist medical negligence solicitors at Hodge Jones Allen have acted for hundreds of claimants over the past forty years. These include patients who have been injured due to A&E negligence following:
Our highly experienced team of specialist clinical negligence lawyers are here to assist and advise. They will advise you comprehensively about the merits of your claim, funding and ensure that you and your family get the best possible results.
Our team of renowned specialists have dealt with hundreds of A&E negligence claims involving the delayed or missed diagnosis of conditions such as:
The majority of our cases are funded by way of a conditional fee agreement, more commonly known as a No Win No Fee agreement. This means there is no financial risk to you.
This means that you will not have to pay anything at the outset, and there is no financial risk or obligation to you if your claim is unsuccessful. Your solicitor will provide clear information on what this means and answer any questions you may have.
The patient attended A&E with a severe pain in his foot. His limb was cold and foot pulse was noted to be weak. The paramedic’s findings pointed to some sort of vascular problem. Unfortunately, the junior doctor failed to take a good history from the patient or conduct a thorough examination. The junior doctor’s diagnosis was that the patient had sciatica – a non-urgent condition. The claimant was discharged from A&E but admitted himself again 10 days later. The correct diagnosis was a blood clot and tragically the delayed diagnosis led to the patient undergoing an above knee amputation.
Although the vast majority of our cases are funded through ‘no win, no fee agreements’, solicitors are obliged to advise of all the available funding options. There are four possible ways of funding your claim.
No win no fee or conditional fee agreement
The vast majority of our cases pursued under a Conditional Fee Agreement (CFA), also known as a ‘no win, no fee agreement’. This means that we would not charge you any legal fees unless you won your case, and would seek to recover our costs from your opponent in the first instance. The agreement permits a maximum deduction from your damages of 25%.
ATE insurance – When we are acting on a no win no fee basis we may also advise our clients to take out a specialist type of insurance called After the Event Insurance Policy (ATE insurance). This is to protect you in the event your claim did not succeed. Your solicitor will explain this in more detail if you instruct us.
Legal Aid funding
Legal aid or Public funding from the Legal Aid Agency is still available for some cases. However, Legal Aid is now limited to cases where a child has suffered a brain injury during pregnancy or birth, or shortly after birth, which has resulted in severe physical or mental disability. Legal Aid is means tested but it is the child’s assets who are assessed, not the parents. Consequently, virtually all new born children will be eligible for legal aid.
Before the event legal expenses insurance – also known as BTE insurance.
Many people have this type of insurance but are unaware of it. Please carefully check any insurance policies that you have, including motor and household insurance, and credit card agreements. You should also check any union membership you have as this may include a form of BTE insurance. It is important to check these things as recent changes to the law mean that ‘no win, no fee’ arrangements may result in some deductions to any compensation you recover. BTE insurance can sometimes quite restrictive in terms of who you can instruct and how they can pursue the case for you.
If we are not able to act for you on a no win no fee basis then it may be possible to instruct us to act on a private retainer.
If you would like to discuss any of these funding methods further, you can call us on 020 7874 8300.
The date by which a claim must be brought is called the “limitation date”. Calculating the limitation date in medical negligence cases is often not straightforward.
3 years of the date when they first had the knowledge (which they reasonably have been expected to acquire) necessary to bring a legal action.
The patient has to have known
(i) the key facts
(ii) that the injury was serious enough to investigate and
(iii) the identity of the potential Defendant. The Court will say that the patient must know (i), (ii) and
(iii) before the three year period starts to commence.
Example – a patient undergoes abdominal surgery. For four years following the surgery, they complain of stomach pain. The patient is reassured and no investigations are undertaken. Eventually, an X-ray is performed which shows a metal object in their abdomen. In this situation the Court will almost certainly rule that the patient would have 3 years to bring a claim starting from the date of knowledge of when they were told of the x- ray – rather than three years from the date of surgery.
Exceptions to the usual 3 year rule – children
The limitation period does not start to run for children until they reach the age of 18 years, so the limitation period for children expires on their 21st birthday.
Exceptions to the usual 3-year rule – patients without capacity
People who lack capacity (the ability to manage their own affairs) are able to issue proceedings at any time. The law states that if a person lacks capacity then the three year period does not commence. In cases of fluctuating capacity, the limitation period may start to run if mental capacity returns.
Click here to access our quick guide on how to make a complaint, and a template complaint letter.
The NHS Complaints Procedure does not offer compensation. It can only offer an explanation of your treatment. Complaints usually have to be made within one year of the alleged negligent treatment.
If you are making a complaint against an NHS hospital they will usually have a Patient Advice Liaison Service (known as PALS). Click here to find your local PALS.
Complaints will be investigated internally by the hospital – they are not obliged to call in external investigators.
It may take some weeks for your complaint to be investigated. You may be invited to attend meeting to explain your side of the complaint. It may be that you would prefer to deal with matters just by letter or email. There is no set process that must be followed.
At the end of the investigation you will receive a letter setting out the NHS response to your complaint.
I don’t think my complaint has been properly dealt with ?
If you are not happy with your complaint response then you are entitled to request an Independent Review.
Independent Review by the Parliamentary and Health Service Ombudsman
The independent review will be undertaken by the Parliamentary and Health Service Ombudsman ( PHSO). The PHSO will make a final decision on your complaint and will look at it afresh. There is no charge for this service.
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