Category: Medical Negligence

Mid and South Essex NHS Foundation Trust, which is responsible for Basildon University Hospital, Southend University Hospital and Broomfield Hospital (in Chelmsford), has recently launched an investigation into the deaths of patients following open aortic abdominal aneurysm (AAA) surgery.

This alarming development has raised concerns about patient safety and the quality of care provided by the Hospital Trust.

In this article, we look into the details of the investigation and explain what we can do to help you if you or a loved one has been affected by this issue.

Abdominal Aortic Aneurysm (AAA) Surgery

An AAA is a potentially life-threatening condition in which there is a balloon-like swelling in the aorta, which is the main artery carrying blood from the heart to the abdomen, pelvis and legs. The swelling is caused by weakness and, should the aneurysm grow to more than 5.5cm, surgical intervention may be required to replace weakened sections of the aorta with a plastic tube (graft). While this surgery can be lifesaving, it carries risks and needs a high level of surgical expertise.

Mid and South Essex NHS Foundation Trust Investigation

The Hospital Trust has recently declared an ‘organisational serious incident’ after a higher number of their patients died following AAA surgery than would have been expected. Dr David Walker, chief medical officer at the Hospital Trust, has said that investigations are underway to ensure AAA services being offered to patients there are safe, and that lessons can be learned from post-operative deaths. The Hospital Trust has appointed an external investigator to lead the investigations, which may take in the region of 6 -12 months to complete.

Impact on Patients and Families

The implications extend beyond the Hospital Trust itself, affecting patients and their families who have undergone or are scheduled to have open AAA surgery. The uncertainty surrounding the investigation’s outcome and concerns for patient safety may cause significant distress and anxiety.

It is vital that the Hospital Trust communicates openly and transparently with affected individuals, providing them with support and reassurance throughout the investigation process.

The Hospital Trust will then need to implement any necessary changes identified through the investigation and to rebuild trust and confidence in the care they are offering.

How Tees Can Help

If you or a family member has been affected by the issues raised in this article, you can get in touch with the medical negligence team at Tees who have specialist solicitors with many years of experience.

We have dealt with numerous claims against Mid and South Essex NHS Foundation Trust, including claims relating to cardiac treatment.

If you would like to contact us, we will be able to give you free, confidential initial advice. We can discuss with you whether we can assist you in making a complaint or claim against Mid and South Essex NHS Foundation Trust. We understand that, in addition to ultimately obtaining any financial settlement that you may be entitled to, it is also important to obtain explanations when there have been shortcomings in treatment, and we also appreciate the sensitivity required when the treatment in question has led to the loss of a loved one.

Medical negligence arises when the treatment provided by a healthcare professional falls below the standard of a responsible body of medical opinion and that substandard care has caused harm or injury.

In some cases, however, a doctor’s actions go so far beyond what is considered acceptable that their behaviour is deemed to be criminal.

Our medical negligence specialists provide expert legal advice for a wide range of medical negligence claims.

If you think the medical treatment that you have received has been negligent or even criminal, Tees can help you to recover compensation for the harm that you have suffered.

Deliberate negligent acts resulting in criminal conviction

In rare cases, doctors treat their patients in ways that go far beyond medical negligence. In these circumstances, their actions can only be treated as a deliberate attack on their patients.

In 1993, Beverley Allitt, known as the “Angel of Death” was given 13 life sentences after being convicted of murdering four children and in 2000, Harold Shipman was found guilty of murdering 15 of his patients and is thought to have had over 200 victims.

A recent example is the case of surgeon Ian Paterson.

What did Ian Paterson Do?

Ian Paterson was convicted of 17 counts of wounding with intent in April 2017 and is currently serving a 20 year prison sentence. Paterson had performed unnecessary surgeries on over 1,000 patients in the Heart of England NHS and private hospitals (Spire Parkway and Spire Little Aston). These procedures included hernia surgeries, varicocele repairs, unnecessary mastectomies leaving his victims feeling violated, mutilated and psychologically traumatised.  He also performed unregulated “cleavage-sparing” mastectomy procedures, leaving breast tissue that often resulted in the return of the cancer and, in some cases, the death of the patients.

In February 2020 a report from an Independent Inquiry was published.

It is estimated that Paterson treated more than 11,000 patients. Of these, more than 750 have so far received compensation for the damage he caused to them in a settlement deal struck in 2017, involving some 40 law firms. However, many more may have been affected by his actions and that they too may be due compensation.

In December 2020, more than 5,000 patients were contacted by Spire Healthcare after independent clinicians reviewed their medical records.  Patients were offered a telephone meeting and follow-up treatment, and Spire Healthcare have set up a new compensation fund for victims of Ian Paterson.  Tees is pleased to help former patients of Mr Paterson who have been recalled by the Spire to claim compensation from the second compensation fund, if they did not apply for compensation from the initial fund for the same injury.

Failing to provide safe care and treatment

In April 2021, East Kent Hospitals NHS Trust pleaded guilty to a criminal charge brought by the Care Quality Commission (the CQC) over failings that led to the death of Harry Richford, at 7 days of age.  Harry was delivered by emergency caesarean section performed too late by a locum,  a second doctor delayed resuscitating Harry and he died from irreversible brain damage.

The CQC charged the Trust with breach of regulation 12 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, which obliges trusts to provide safe care and treatment.

Again in July 2021, The Independent reported that the CQC is considering a criminal prosecution against Nottingham University Hospitals Trust, following the death of baby Wynter Andrews in September 2019. 

When does a lack of consent give rise to a criminal case of battery or assault

If a patient has not given informed consent to a medical procedure both medical negligence and criminal liability may arise.

Informed consent is a relatively complex legal concept, but the over-riding principle is that a patient has the right to be advised of not only the benefits but also the material risks of the proposed treatment and be made aware of any reasonable alternatives (including doing nothing).  Consent issues normally arise in the context of surgery but should be considered when any treatment is offered.

If a patient has not consented to the medical treatment, this could lead to a criminal charge for battery or assault.  This requirement for consent is waived if the patient:

• is unconscious or incapacitated and needs emergency life-saving treatment
• needs an additional emergency procedure during an operation
• lacks capacity to consent to treatment of their mental health due to their mental health condition (but consent is still required for treatment for unrelated physical conditions)
• has been detained under the Mental health act
• is a public health risk due to having Rabies, Cholera or TB

Once more, it is the Police and Crown Prosecution Service that determine whether it is appropriate to bring a criminal case against a doctor in these circumstances. Intent to harm is likely to be very relevant and more often than not a civil suit will be more appropriate.

Criminal gross negligence (medical) manslaughter

The crime of gross negligence (medical) manslaughter arises where death occurs as the result of “truly, exceptionally bad” healthcare.

Usually a criminal investigation is triggered by the Coroner referring the case to the Police for investigation, although families can also ask the Police to look at the circumstances of death.   The CPS will consider whether it is in the public interest to prosecute the relevant medical professional including whether they consider that prosecution is a proportionate response. The case will be decided by a Jury, in a criminal court.  To secure a conviction, the Jury must be satisfied, beyond all reasonable doubt, that the individual or Trust committed the crime of gross negligence manslaughter.  A conviction may result in a custodial prison sentence.

How do you prove gross negligence manslaughter?

In 1994, an anaesthetist called Adomako was convicted of gross negligence manslaughter. Adomako hadn’t noticed that a patient’s oxygen pipe had become disconnected during an operation. Consequently, the patient died.

The judge in this case set out the test for gross negligence manslaughter:

• there must be a duty of care
• the defendant must have breached that duty of care
• the breach must have caused the death of the victim and
• the breach of duty is so serious in all the circumstances that it should be judged criminal

The judge also gave some examples of what might constitute a criminally serious breach:

• indifference to an obvious risk of injury to health
• knowing the risk of injury to health at the outset but a determination to run the risk nevertheless
• knowing the risk of injury to health and intending to avoid it but coupled with such a high degree of negligence in attempting to avoid injury that a jury deems a charge of criminally serious breach as necessary

Gross negligence manslaughter conviction examples

• in 2007 Dr Stevenson, a GP, who injected his patient with six times the required dose of diamorphine for a migraine, admitted manslaughter but was spared jail
• in 2015 Dr Bawa Garba a trainee doctor, was found guilty of gross negligence manslaughter when she failed to diagnose and treat sepsis leading to the death of a 6-year-old boy, Jack Adcock
• however in 2016, a Boots optometrist, Honey Rose who had missed signs of a lethal build-up of fluid on 8-year-old Vincent Barker’s brain, which tragically resulted in the his death, had a conviction for manslaughter overturned. 

In this final example, the judge stated that: for gross negligence to be found, there must be a “serious and obvious risk of death”, rather than just risk of serious injury. The risk must be “assessed with respect to knowledge at the time of the breach of duty”. 

The line between negligence and gross negligence is therefore still hard to define.

Corporate manslaughter and corporate homicide

The Corporate Manslaughter and Corporate Homicide Act 2007 means that organisations can be found guilty of the office of corporate manslaughter or homicide.

In a medical context, NHS Trusts may face criminal prosecutions if a patient dies as a result of gross negligence.  If found guilty, the healthcare Trust may be fined or ordered to take steps to remedy any deficiencies in health and safety policies, systems or practices.

A series of baby deaths at the East Kent Hopsitals University Trust has recently prompted a police investigation into a possible corporate manslaughter and/or gross negligence manslaughter charge relating to unsafe maternity care that has affected nearly 200 families over a number of years. The Health and Social Care Committee on maternity safety in England has now released a report on the Safety of Maternity Services in England. The report concludes that improvements in maternity services have been too slow, with the CQC’s Chief Inspector of Hospitals reporting evidence of a ‘defensive culture’, ‘dysfunctional teams’ and ’safety lessons not learned’.  Sound familiar?  MPS have recommended urgent action to address staffing shortfalls in maternity services with staffing numbers identified as the first and foremost essential building block in providing safe care.

How Tees can help

If you or a close family member have suffered harm from negligent medical treatment, please get in touch. We will investigate what happened, advise you on your potential claim, and support you in bringing a claim.

We know that going through something like this alone can be a daunting and worrisome prospect, but our empathetic and caring team is here to help you secure the best outcome.

Most medical care is safe and effective. However, mistakes and systemic errors will occasionally occur, especially where nurses and doctors are over-stretched. Fortunately, these mistakes and errors rarely cause harm, but if something does go wrong and you have been injured, you should seek the advice of a specialist medical negligence solicitor.

What qualifies as medical negligence?

The fact that there may have been an error or a poor outcome does not automatically entitle you to compensation. However, if you have been injured because a doctor or other healthcare professional has not provided the proper standard of care, it may be possible to claim compensation. You should seek specialist legal advice to help you through this process – it will be almost impossible to navigate alone, without expert help.

We understand that complaining about medical treatment can feel overwhelming and distressing, but there are many good reasons for making a complaint and possibly, in addition, a claim for negligence. For example:

• it will help you understand what happened
• if you have suffered injury and financial loss, it’s important that you receive the compensation that you need to build your life back up again: to fund any additional treatment, rehabilitation
• or additional costs and to positively plan for the future
• patient safety can be improved when healthcare providers are made aware of what has happened.
• In the vast majority of cases, the claim will not be made against an individual such as a doctor or nurse, but rather against their employer.

Here we set out the process:

Making a medical complaint: If you would like a full explanation of what has happened, an apology from the hospital or doctor concerned and assurances that any problems that might affect other patients have been addressed, you could consider:

complaining to the doctor or hospital involved in your care and asking for an explanation
using the formal NHS Complaints procedure to make a formal complaint
contacting the body responsible for improving and monitoring the quality of care. In England, this is the Care Quality Commission, and/or
writing to the professional regulatory organisation, for example, the General Medical Council (for doctors in United Kingdom) or the Nursing and Midwifery Council (for nurses and midwives in England and Wales) if there is a question about an individual doctor or other healthcare professional’s fitness to practice.
For further information, please see the AVMA Guide to Making a Complaint under the NHS Complaints Procedure.

Free assessment: When you get in touch, your case will be assessed – free of charge – by our specialist assessor who is a medical negligence lawyer with over 40 years’ experience. You will get a highly expert opinion and a helpful and responsive service. We will listen to you, understand what you want to achieve and advise you how best to proceed. We will also let you know if we think you do not have a case for compensation.

Will I be eligible for compensation?

A big part of the initial assessment we will do for you, is establishing what happened, and more specifically working out if there is likely to be a case for compensation to be paid. Compensation will only be paid if you can prove all three of the following:

1. the health professional treating you owed you a duty of care. All healthcare professionals have a duty to their patients to take reasonable care when carrying out their professional skills.
2. the health professional was negligent. A healthcare professional must provide an acceptable standard of care which is consistent with a responsible body of medical opinion. A healthcare professional is not negligent if other responsible healthcare professionals would have acted in the same way.
3. And you suffered harm, as a result of the negligence. This is known as causation.

When you come to us, we will listen to you, obtain medical records and work out whether you have a case that has a good chance of being successful.

Examples of medical negligence

There are many different ways in which medical negligence can occur.  Here are some general examples:

• a failure to diagnose your condition
• a delay in diagnosing your condition
• making the wrong diagnosis
• failing to arrange the investigations or treatment you need
• failing to warn about the risks of a particular procedure
• surgical error
• failing to recognise and act on complications
• making a mistake in the prescription, administration and dispensing of drugs.

How can I afford to pay legal fees to make a claim?

Please don’t worry about costs. There are options available which mean you don’t have to pay out any money in advance of getting compensation, or at all, if the claim is not successful. There are a range of options, including no win, no fee, which we will explain to you before you start a claim. These include:

• legal-expenses insurance
• trade union funding
• “legal aid”
• private funding
• “no win, no fee”.

No win, no fee

Most medical negligence clients choose a “no win, no fee” agreement.  No Win, No Fee arrangement ensures you don’t pay any legal or associated costs unless your case is successful. If you win, most of your legal costs are paid by the Defendant.  A small portion of your compensation may be used to cover legal costs not paid by the Defendant. The majority of our clients choose this option for peace of mind and affordability.

Is there a time limit for making a claim?

In England and Wales, a medical negligence claim must normally be brought within three years of the date of the accident or the date that you became aware that your injury was linked to the original accident (whichever is latest).  This is known as the “date of knowledge”. The date of knowledge can be much later than the accident date.

If legal proceedings are not started in court within the three years, the case is then “time-barred” or “statute barred” as it is sometimes known, which means it cannot proceed.

There are exceptions and special rules apply for children, for adults with serious mental disabilities, for fatal cases and Human Rights Act cases.  The courts do have discretionary power to allow claims which are already outside the time relevant limits to proceed, but these powers are only exercised under very limited circumstances.

Who will handle my case?

We have a large and experienced team of highly regarded specialist lawyers, with decades of experience and expertise in medical negligence cases. One of these lawyers will be your primary contact and will take responsibility for your case. This person will be your individual point of contact.  Unlike many firms, we make sure that at Tees, our lawyers only look after a small number of clients at any one time – we want to be there for you when you need us.  Your lawyer will work closely with you throughout your case to understand your concerns, answer your questions, support you through the harder times and celebrate the good times with you.

Stage 1: Investigating your claim

It’s important to investigate your claim thoroughly to establish how strong it is.  The initial investigations can therefore take several months.

We will then prepare an initial statement based on your recollection of events.

We will then apply for a copy of all your medical records and sort and review these.

Any case that is brought must be supported by independent expert evidence.  Therefore, the next step will be to instruct an independent medical expert to review your records and advise whether or not the care you received fell below an acceptable standard. Tees has contacts with a wide range of medical experts and we only work with those with the highest professional qualifications and reputation.

If your treatment was substandard, we will also need to instruct an independent medical expert to consider whether this caused, materially contributed to, or worsened your condition.

We may in addition, arrange a meeting with an experienced barrister and the medical experts to review the evidence in detail and ensure that your claim is strong enough to proceed.

Stage 2: Starting your case

The next step is to notify the defendant (for example the hospital) in a detailed “letter of claim”.

The defendant has four months to reply with their “letter of response”. This gives them the opportunity to investigate your case.  They may deny that they are responsible for your injuries or they may agree that they are liable for some or all of your injuries.  They may offer you compensation to settle your claim.

After we have received the letter of response, we will review your case further and advise you whether to commence formal court proceedings.

Stage 3: Commencing court proceedings

A claim is issued by sending a simple formal court document, called the claim form, to the court.  This must be served on the defendant within four months of receiving their letter of response, together with:

• a statement of your claim (the “particulars of claim”), which will set out the allegations of negligence
• a “schedule of damages”, which will set out the specific financial losses incurred as a result of the alleged negligence and an estimate of the likely future losses
• a medical report on your condition and prognosis.

You will need to approve all these documents and sign a “statement of truth”, confirming that the documents are true and accurate, before we send them to the defendant.

Stage 4: Timetable

The “defence” is technically due 28 days after the particulars of claim are served.  However, the defendant usually applies to the court to extend this time limit and a 1-3 month extension is usually given.

After the defence has been filed, the court sends out a questionnaire to all parties; these are known as “directions questionnaires”.

Thereafter, there will be a court hearing (called a “costs case management conference”), when the court will set down a timetable of events to progress the case to trial and, in most cases, allocate both sides a “budget” for the costs that each side is allowed to incur going forwards.  Generally, the trial is scheduled to take place within 12-18 months of the claim form being issued.

The timetable generally includes:

• production of various documents relating to the case (“disclosure”).
• exchange of statements from you and all witnesses, including the health professionals responsible for your care (“exchange of factual witness evidence”).
• exchange of expert reports (“mutual exchange of expert evidence”).
• a meeting between medical experts on both sides to discuss the case and try to narrow the issues prior to trial (“experts’ meetings”).  This meeting usually takes place without the lawyers present.

The timetable then allows some time for negotiation between the parties, although this may happen at any point during proceedings. There is usually at least one further conference with your barrister and experts to review your case in detail and consider the best way to proceed.

Stage 5: Trial

Most cases don’t get to this stage because the vast majority of cases are settled without any court hearing. Once both parties have assessed the evidence in detail, it is often possible to negotiate a settlement.  Your case may be settled because the defendant no longer feels they are able to defend the case or proceed to trial.

If the case is brought by a child, or someone who lacks capacity to manage their own affairs, the court must approve any negotiated agreement.

Some cases do proceed to trial and it is always necessary to prepare for trial. At a trial, a judge will listen to the evidence, particularly the evidence of the independent experts, and decide whether or not your claim succeeds.  The length of the trial depends on the complexity of the case.

In some cases, the court will deal with just some of the issues in the first instance.  For example, the court often decides to have one hearing dealing with liability and, if this succeeds, another to deal with the amount of damages (this is known as a “split trial”).

Valuing your claim

As well as investigating whether you have a claim, we will also investigate the amount of compensation to which you would be entitled. The purpose of compensation is to return you, as far as possible, to the position that you would have been in if the medical negligence had not occurred.

In many cases, we will not fully investigate how much compensation you are likely to receive until the preliminary medical issues have been considered.  However, we will always be able to provide you with a broad outline at the beginning of the case.  It will be impossible for us to be more precise, because we will need to investigate how much you are entitled to and obtain evidence in support.  This can take time and involve additional experts.

The amount of compensation will depend on the severity of your injury and the financial consequences of your injury and will take account of:

• your pain and suffering (“general damages”) and “loss of amenity” (which relates to your quality of life, if, for example, you’re now unable to carry out daily activities or hobbies).
• any financial losses and expenses that you have incurred as a result of your accident (“past losses”). Evidence will be required to establish these losses.  It is therefore very important to keep an accurate record of these and evidence (pay slips, receipts etc) wherever possible.
• any financial losses and expenses that you will incur as a result of your accident (“future losses”).

Pain and suffering

This is an amount of money to compensate you for the pain, suffering and loss of amenity attributable to your injury.  The court will consider guidelines and previous similar cases when attempting to value this part of the award.

Loss of earnings

Whether you were employed, self-employed, unemployed but looking for work; or a child at the time of your injury, you are entitled to claim for any loss of earnings you have suffered, or may in the future suffer, as a result of your injury.  Amongst other things, this could include:

• loss of earnings
• any amounts repayable to your employer under your contract for employment
• any possible effect on promotion prospects
• any loss of benefits of employment such as private medical insurance, car, fuel allowance, car servicing, insurance, free/reduced food at work, concessionary fares, free board and lodgings, cheap loans, staff discounts, SAYE or share option schemes, allowances including children’s education and housing, telephone allowance and mobile phone
• any possible loss of pension
• (where self-employed) any effect on the growth of the business.

In some circumstances, you may also be entitled to claim for your partner’s loss of earnings, if he or she has had to take unpaid time off on your behalf.

Assistance from others

Whether or not you have paid for it, you can often recover compensation for those who have provided and/or will help you in the future as a result of your injury.  Amongst other things, this could include:

• nursing assistance
• domestic assistance, e.g. shopping, cooking, cleaning, laundry, ironing
• additional cost of maintaining accommodation, including DIY
• gardening
• car maintenance costs.

Medical treatment and prescriptions

You may be able to recover the cost of any private specialist treatment which has been required or may be required in the future because of your injury, for example, any medical treatment, physiotherapy, occupational therapy, speech and language therapy etc.

You are also entitled to claim the cost of individual prescription fees, pre-payment prescription certificates, painkillers, bandages etc in so far as they relate to your injury.

Accommodation

It may be that as a result of your injury, you have different accommodation needs.  Additional accommodation and adaptation costs, extra heating expenses, extra lighting expenses etc can all be included in your claim.

Specialist Equipment

A claim can also be made for any special equipment bought as a result of your injuries; eg wheelchairs, grabs, stair lifts etc.

Miscellaneous Costs

Other financial losses incurred as a result of your injury, can also be claimed, such as extra washing expenses, special diets, cancelled holidays, the additional costs of going on holiday, hairdressing, babysitters, telephone calls, travel expenses etc.

When is the compensation payment made?

During your case, it may be possible to obtain an interim payment of compensation from the defendant to help you purchase specific items such as a wheelchair, a car or a house.  This is usually only possible if the defendant has accepted liability for your claim.

At the end of the case, compensation may either be paid as a single lump sum or as ongoing annual payments (“periodical payments”) or a combination of the two.

You may be awarded provisional damages.  This is when there’s a possibility that your injury will get worse in the future, it’s possible for the court to assess the value of your injury as it stands at the time of the trial or settlement, but also make an order allowing you to come back to court if your injury gets worse. This must amount to a “serious deterioration”.

What about state benefits?

If the case is successful, certain state benefits might be deducted from your compensation and refunded to the government. In addition, if you receive compensation, your entitlement to benefits now or in the future may be affected.  In some cases, if may be possible to set up a Personal Injury Trust, which is a legal device, to prevent this happening.  At Tees our experts can advise you on this.

Investment Advice and Life Planning

At the end of the case, you may have a large sum of money.  Our expert Wealth Management Advisers are able to advise how best to invest this money to ensure that it meets your future needs and any other specific concerns that you may have.

Our specialist Private Client Team will be able to help you Make a Will and Lasting Powers of Attorney.

Court of protection and deputyship

If you have a serious mental disability and are not able to manage your affairs, an application will need to be made to the Court of Protection for a deputy to be appointed.  We can assist with the court application and provide advice to the deputy.  These costs will form part of the compensation sought in your claim.

 

If you are concerned about the standard of care a relative or loved one is receiving, there are steps you can take to help improve their situation. Our specialist Medical Negligence team offer valuable help and guidance. You can call our Medical Negligence experts on 080o 013 1165 for a free, confidential, no obligation chat.

What to do if a loved one isn’t getting the care they need

Recent reports in the press and by the BBC point to a ‘care crisis’ in the UK, and ongoing issues with the UK’s care system.  A recent report from the Care Quality Commission (CQC) has highlighted the sub-standard levels of care sometimes provided to patients across the UK. They report that many services are underfunded and overstretched, with staff shortages being a major area of concern.

If you have a loved one receiving care, or moving into a care home, they have the right to be treated properly. They might choose to receive domiciliary care at their own home, or through a residential or care home. Sadly, as documented by the press and the BBC, some carers and homes can sometimes fall short in the care they provide to patients.

There is no clear definition of poor care, and there can sometimes be a thin line between poor care, and abuse and neglect. The bottom line is this: is the person getting the support and help they need as identified in their care plan?

Common problems with care and care homes

When problems occur, it’s often due to a neglect of basic care needs, toileting, poor staff behaviour and the general happiness and well-being of the patient. Common issues include:

• Injuries caused by falls, slips or poor handling by staff
• Pressure sores
• Errors in medication
• Dehydration
• Malnutrition
• Late referrals for treatment

Seeing someone suffer because of poor care is emotionally very difficult. You might be worried for their safety, or unsure if you should speak up. However, there are steps you can take to help.

What to do if you have concerns about the quality of care

If you have concerns about the care a friend or relative is receiving, then there are several practical steps you should take. Don’t be afraid to raise a complaint. Although it can be a difficult task to discuss concerns relating to someone’s care, it’s important to remember that they have a right to be treated properly. Care homes and home-care agencies must be registered with the CQC and meet the minimum standards set. By law, all health and social care services must have a procedure in place for dealing with complaints.

As a first step, you should discuss your concerns with the patient. Make your own observations, or if you can’t be there, ask someone else to be present when the carer comes, or in the case of residential or nursing homes, visit the patient so that you can form a first-hand view of the level of care being provided.

Dealing with abuse by carers and care homes

If you suspect that your relative or loved one is receiving poor care or being abused in any way, ask them about it in private. Try to get as much detail as possible. Then, report the matter to the manager responsible for the patient’s care. Ask them for an explanation and an investigation. Follow up on your verbal complaint in writing.

If you witness abuse or have evidence that suggests basic standards aren’t being met, intervene as soon as you can to stop it. Write down what happened, and follow it up with the care manager. Keep copies of all documents relating to your complaint, recording important details like date, time, place and the names of staff involved.

You can also contact your local authority to report a problem – even if they don’t fund the patient’s care. All councils have procedures in place to deal with the care and protection of vulnerable adults. You should also inform the CQC, as they have legal powers to intervene and make care providers improve their service.

What is no win no fee?

A no-win, No-fee arrangement ensures you don’t pay any legal or associated costs unless your case is successful. If you win, most of your legal costs are paid by the Defendant.  A small portion of your compensation may be used to cover legal costs not paid by the Defendant. The majority of our clients choose this option for peace of mind and affordability.

How do no win no fee claims work?

Most of our claims are funded using our funding package, which means if you lose your case, it should not cost you a penny.  The package includes a conditional Fee Agreement, a loan facility and after the event insurance. The package will ensure that you do not have to pay our costs, or any third-party costs, as your case progresses. If you win your case, we will recover most of the costs from the defendants and we will deduct a success fee, the insurance premium, the loan facility fee and any unrecovered costs from your compensation.

Making a no win no fee claim

The first step is to give us a call. We have a team of friendly lawyers who will listen to you and advise you on the next steps.  It’s free to talk to us and we will advise you about the different ways the case can be funded, including no win no fee, legal aid,  legal expenses  insurance and any other available options.  We will give you detailed information about how the funding works and everything will have been explained carefully. We make sure that people who have experienced injury and damage because of medical negligence can access legal advice.

With Tees you can make a no win no fee claim for a very wide range of medical negligence situations including the following:

• Accident and emergency claims
• amputation claims
• birth injury claims (baby)
• birth injury claims (mother)
• cancer misdiagnosis claims
• cerebral palsy claims
• child injury claims
• cosmetic surgery claims
• ear, nose and throat claims
• eye claims
• fertility claims
• gall bladder claims
• gynaecology claims
• GP claims
• hernia claims
• medical consent claims
• orthopaedic claims
• sepsis claims
• spinal injury claims
• surgery claims

What are conditional fee agreements?

Conditional Fee Agreements (CFAs) are contracts agreed between a client and a solicitor when starting a claim for compensation. They set out how the solicitor’s fees, or a part of them, will be paid. This payment will be only on the condition of certain circumstances – which is most often if the case is won. A conditional Fee Agreement is the formal name for the agreement that is commonly referred to as No Win, No fee. It’s often linked to legal advice such as medical negligence or personal injury where compensation could be awarded.

How does a conditional fee agreement work?

If you lose the case, you do not pay.  The legal fees are written off. We are able to arrange insurance for you which provides full cover for any third party expenses, e.g. medico-legal expert fees, court fees, if the case is unsuccessful.  The insurance premium is deferred and self-insured, which means that if the case is unsuccessful, you do not have to pay a penny.

If you win the case and receive compensation, the defendant will pay the majority of your legal fees and expenses.  You do pay your solicitor a ‘success fee’ from your compensation to reflect the fact that in running your case, the law firm has taken the financial risk and in most cases, will not be paid for many years for the work that they have undertaken.  If there is insurance in place, you will need to pay part of the Insurance premium.  You may also need to pay for any other associated costs with funding the case, such as loan fees or costs that are not recovered from the Defendant.

In a no win no fee case, it is the solicitor that is taking the main financial risk because if they don’t win the case for you, they won’t be paid.  We spend a lot of time reviewing the facts and considering the medical and legal position at the outset as it is in no-one’s interest to run a case that is never going to succeed.  At Tees, this initial assessment is free.  We will not advise you to proceed unless we are confident you have a good chance of winning the case.

Is there any risk in no win no fee?

As long as you take out insurance to cover any third party expenses and any costs you may be ordered to pay the defendant throughout the case, you can pursue the case without carrying any financial risk.

We always recommend that a client takes out insurance and can arrange this for you.  That way, you can pursue your case with absolute peace of mind, provided that you keep your responsibilities under the agreement.  These include co-operating throughout the case, attending any necessary expert examinations and/or court hearings, and giving instructions that allow us to do our work properly.

One important exception to the rule is that if you are found to be fundamentally dishonest by the Court, the no win no fee Agreement will be invalidated and the Insurance Policy will be void.  This means that you will become liable for the full costs of the litigation.

If you’re thinking of starting a no win no fee claim, it’s important that you work with a solicitor who will take the time to discuss all the implications and options.

 How to cancel a no win no fee claim

In certain circumstances, you have the right to cancel the Agreement within 14 days of signature.

After that time, if you wish to cancel the agreement, you need to talk to the solicitor working on your case. They will be able to advise what options are available to you.

Postnatal depression and postnatal post-traumatic stress disorder are psychological conditions that can affect parents after their baby is born. They may be caused by difficult or traumatic experiences before, during or just after childbirth.

If you are concerned about the care you received during your pregnancy, and think it might have caused a problem, talk to our birth injury claims specialists. We’ll listen to your experience, and help you find out what happened during your care.

Medical negligence claims – birth trauma

Birth trauma can be devastating for mothers and their families, and the consequences can be wide-reaching. Possible consequences of birth trauma include:

• the mother may be unable to return to work
• breakdown of the relationship between the parents
• difficulty bonding with the new baby
• psychological difficulties
• fear of having another child.

Unfortunately, birth trauma can occur as a result of negligent care during pregnancy and delivery. Even if there is no physical harm to mother or child, the circumstances surrounding the birth can be psychologically damaging. If this happened to you, a claim can help provide closure and financial security – for example, if you have been unable to return to work, you may be able to claim for loss of earnings.

What is postnatal depression?

Postnatal depression is a type of depression which can affect new mums and dads after the birth of a baby. It is quite common; about 1 in 10 parents will develop postnatal depression.

The difference between postnatal depression and the ‘baby blues’

‘Baby blues’ can affect women the week they give birth and can cause new mums to feel anxious, depressed, emotional and tearful. This can be particularly upsetting at a time when mums expect to be enjoying their newborn and settle into their new routine. ‘Baby blues’ are very common, and can happen to anyone – even if the delivery was routine and mum and baby are healthy. Normally, the symptoms go away by themselves after just a few days.

Postnatal depression is different to ‘baby blues’. It can affect both mums and dads, lasts longer and can develop up to a year after a baby is born. Unlike ‘baby blues’, many parents need therapy to get through postnatal depression. If you think you might have postnatal depression, you are not alone and there is support available.  If you are worried about your mental health, your doctor should take you seriously and listen to you. Doctors, midwives and health visitors are trained to recognise signs of postnatal depression and can refer new parents for treatment and support.

Causes of postnatal depression

Doctors don’t know exactly what triggers postnatal depression. By nature, birth is a very personal and unique experience and people react differently. Postnatal depression is very common, even if you have had a baby before.  There are many organisations that are able to help you. Doctors and midwives are also able to refer a mother/ father to the appropriate services for management where signs of postnatal depression are spotted.

Research suggests that a difficult experience during birth can increase the risk of developing postnatal depression. Parents who experience one or more of the following may be more at risk:

• particularly long or difficult labour
• birth injury to the mother or baby
• traumatic experience during birth.

Birth injuries to mother or baby can be devastating and difficult for new parents to process. They can make it harder to cope, physically and emotionally, in the months after baby is born.

Similarly, a difficult experience during birth and labour can affect parents for a long time. This can happen even if mother and baby are healthy following delivery. For example, a lack of communication from obstetric and midwifery staff can cause worry and stress during a baby’s birth, and make parents feel that they have no control over the situation. In other cases, parents may not be given enough time to bond with their baby after delivery. The circumstances of the baby’s birth, even if there is no physical injury, can have a long-term effect on parents and your caregivers should be aware of this.

Medical negligence can cause postnatal depression, but it can happen during any birth – even if no negligence was present.

Signs of postnatal depression

The NHS lists the following symptoms as possible signs of postnatal depression:

• consistent feeling of sadness or loss of interest in the world
• feeling unable to properly care for the baby
• difficulty bonding with the baby
• lack of energy and persistent feeling of tiredness
• anxiety about the baby.

A full list of symptoms is available on the NHS website.

Postnatal depression can be debilitating. It affects the bond between parents and their new baby. It can also affect relationships within the family unit. Fortunately, it is a widely recognised condition and a lot of help is available. There are a number of charities committed to helping parents with postnatal depression, support groups and therapies available through your doctor. In very serious cases, your doctor may recommend admission to a specialist mother and baby unit.

Recognising the signs of postnatal depression is crucial. New parents should feel confident enough to be open with their midwife, doctor or health visitor about their feelings. Friends and family should also be aware of any unusual behaviour, and encourage parents to talk to their care provider if anything seems amiss.

What is postnatal post-traumatic stress disorder?

PTSD is a serious psychological condition which is caused by experiencing or witnessing stressful, frightening or life-threatening events. PTSD is often associated with situations such as military combat, serious accidents, terrorist attacks and sexual assault. People suffering from PTSD relive the traumatic event and may experience intrusive flashbacks and nightmares about it. Other symptoms include anxiety, insomnia and feelings of isolation and guilt.

Postnatal post-traumatic stress disorder (‘PNPTSD’) can also be called ‘PTSD (AC)’ – post-traumatic stress disorder after childbirth. It is a term used to describe PTSD which develops because of a traumatic experience during childbirth.  It’s a natural reaction to a traumatic experience.

Women with postnatal post-traumatic stress disorder may experience flashbacks of their labour and try and avoid situations that remind them of the experience.

Symptoms of postnatal post-traumatic stress disorder

Every case of birth trauma is different, and the symptoms are very individual and personal.

Possible symptoms of postnatal post-traumatic stress disorder can include:

• feelings of inadequacy and failure
• flashbacks or nightmares about the birth (feeling of reliving the experience) or difficulty remembering parts of the birth
• fear of sex, becoming pregnant again and childbirth (‘tokophobia’)
• problems bonding with the baby
• difficulty breastfeeding
• emotional problems – feeling isolated, depressed or numb.

Women with postnatal post-traumatic stress disorder may feel isolated, and it can be very difficult to talk about what you’re going through. If the baby was born healthy, it’s not uncommon for women to feel as though they should not be feeling this way. Often, this makes the problem worse and can stop women from seeking the support they need.

Birth debriefing if you suffer a traumatic birth experience

If you have a traumatic birth, you can request a debriefing session with the consultant responsible for your care. It’s a chance to ask questions about your care and understand what happened, and why. The session is designed to provide you with answers and help provide some closure after a traumatic experience.

The consultant will go through the events surrounding the birth, and explain why certain decisions were made. The debriefing session can happen at hospital, or once you have been discharged home. It is best to have the session soon after the birth, when you feel able to do so. Some units will offer a debriefing session automatically – but, if you are not offered one, you can request one.

Your partner or family can, with your consent, request a debriefing session on your behalf.

Causes of birth trauma

The Birth Trauma Association lists the following  as the most significant causes of postnatal post-traumatic stress disorder:

• Mode of delivery: the method used to deliver the baby can be traumatic for the mother. Any type of delivery can be traumatic, and mothers who experience very medicalised, unplanned or invasive deliveries may be more at risk of birth trauma. This includes invasive procedures such as emergency caesarean sections, inductions and instrumental deliveries (e.g. forceps or ventouse deliveries)
• fear for the mother or baby’s life during delivery: if there is a problem during labour and the mother or baby’s life is at risk it can be a traumatic experience (e.g.  if the baby is premature or in distress)
• lack of control during labour:  research indicates that it is important for women to feel secure and protected during labour. It can be frightening and traumatic for mothers who experience medical interventions they didn’t plan for, feel they should not have had or didn’t have much information about
• poor attitudes of care team: the way attending staff treat mothers during labour can have a significant impact on their birth experience. Lack of communication, empathy and understanding from midwives and doctors can make labour harder. Such attitudes can contribute to a loss of control, dignity and privacy
• inadequate pain relief: mothers should be able to choose what pain relief they want during labour, without fear of judgement by midwives and doctors. When women do not have access to pain relief, or don’t have all the information about the options available to them, it can contribute to a traumatic birth experience. If the labour is particularly long, painful or the mother feels unable to make her own decisions, this can contribute to a traumatic experience
• lack of support: proper care, and a wider social support network, can contribute to a mother’s sense of protection during and after labour. Without this, new mothers may lack the practical and emotional support they need
• previous traumatic event: research suggests that, if a woman has experienced PTSD before, she may be more likely to develop postnatal post-traumatic stress disorder.

It is important that women feel safe and supported enough to speak out and ask questions about their birth experience. Having a good support network in place can help with this.

Having another baby after a traumatic birth

Lots of women who suffer a traumatic birth have concerns about getting pregnant again. If you are concerned, talk to your doctor or midwife during your pregnancy. If your care providers are aware of your situation, and your feelings, they should listen to you and support you. You may wish to include this in your birth plan, to remind your midwife during the delivery. Mothers who’ve been through a traumatic birth are encouraged not to internalise their emotions, but to share their thoughts and concerns with a midwife or doctor.

Support following a traumatic birth

There are a number of places which may be able to offer support during pregnancy or following a traumatic birth, including:

• Your GP
• Your midwife
• Your consultant
• Friends and family
• Organisations such as the Birth Trauma Association
• The PALS team at hospitals should you have concerns about your care

If you have concerns over the treatment you received during your pregnancy, in labour, or following birth speak to one of our dedicated birth injuty solicitors who will be able to investigate what happened and why, and provide advice as to whether you have suffered medical negligence.