Category Archives: Uncategorized

CLIMB EVERY MOUNTAIN…

Kilimanjaro

As we celebrate the achievement of Laura Bater, one of our clinical negligence solicitors, and her fiance, Adam Molloy, pictured above, both of whom have just conquered Mt Kilimanjaro, we have paused to reflect upon the mountains some of our clients have to climb in their daily lives.

Laura has chosen to use her African adventure “holiday” to fund-raise for James Hopkins Trust (“JHT”, of which our Adrian Fletcher is a trustee), which has so far helped over 500 children and their families cope with life limiting and life threatening illnesses.  Adam is fund-raising for Myeloma UK.

JHT is a charity well known to us; a number of our clients have been helped by JHT, and we see just how vital their work is, every day.  Not only do they provide much needed respite, day and night, they also provide specialist therapies, and lasting happy memories in challenging circumstances.  This level of specialist provision costs money – £470,000 a year, or put another way, £500 per 24 hours of respite care.

So in saluting Laura and Adam, we salute also the local unsung heroes at JHT, and the families, friends and carers who support everyone in need of JHT’s help.

For more information about JHT:

http://www.jameshopkinstrust.org.uk/welcome-to-jht/

To donate:

http://uk.virginmoneygiving.com/team/LauraandAdamclimbKili

 

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Clinical Negligence Alert June 2016

The Department of Health is seeking to limit its liability to pay legal costs to those negligently injured by the National Health Service by bringing in “fixed costs” for all clinical negligence compensation claims worth £250,000.00 or less.

Detailed proposals have yet to be published, but if the current proposals become effective, they will affect the vast majority of clinical negligence claims. They will cover claims for life changing injuries and fatalities.  They will apply not only to claims against the NHS, but also to all clinical negligence claims, including claims against general medical practitioners, dentists, consultants paid privately, etc.

If the fixed legal costs payable by the wrongdoer are limited to such a low level that it is uneconomic for the claim to be pursued, solicitors will not be able to accept instructions to pursue such claims in the future.

As regards any claims pursued, substantial unrecovered legal costs may have to be deducted from the compensation paid to the injured party, particularly if the wrongdoer does not settle the claim as quickly as it should do.

Fixed costs were meant to be in place from October 2016, but as detailed proposals have still not been published, this timetable has been put back, although no new date has been set.

When the detailed fixed costs proposals are finally publicised, it is likely that the window of opportunity to make representations will be kept as short as possible.

Therefore, The Law Society, the Association of Personal Injury Lawyers (APIL), Action for Victims of Medical Accidents (AvMA) and The Society of Clinical Injury Lawyers (SCIL) are striving to ensure that the relevant decision makers understand the implications of the Department of Health’s current proposals for injured victims of negligence and their families.

It is therefore possible that the detailed fixed costs proposals may vary from the proposals currently on the table.

What seems likely, however, is that changes will be made, and there will be little time to react to those changes before they come into force.

Our advice to those who believe they have grounds to make a clinical negligence claim is therefore to seek legal advice without delay. Otherwise, they may find themselves without legal representation at all, or face large deductions from their compensation award, or both.

For more information please go to the APIL website:

https://www.apil.org.uk/medical-negligence

For updates, please follow us, the Law Society, APIL and/or AvMA on social media.

Anyone opposed to the government’s proposals is urged to write to their Member of Parliament detailing their concerns. For advice on how to do this please contact APIL.  

Iacopi Palmer Solicitors LLP 

The law and new medical treatment

DELAYED DIAGNOSIS OF CERVICAL CANCER AND NEW MEDICAL TREATMENTS: HOW CAN THE LAW RESPOND?

This, our first ever blog, is dedicated to the memory of Roger Wicks, a co-founder of SCIL (the Society of Clinical Injury Lawyers). He helped foster a new willingness amongst us to share information. Our blog is posted in that same spirit, in the hope that our experiences help those injured, and their lawyers, to achieve the best they can, despite the obstacles in our path.  Rest in peace Roger.

Diana Lyalle of our clinical negligence team offers her thoughts on the interface between law and medicine in circumstances where a new treatment posed new legal challenges for achieving a just compensation award.

“Cancer treatments have improved in leaps and bounds in my twenty years of clinical negligence practice, and when we were asked to seek compensation for a young mum of two who had developed cervical cancer despite having cervical smear tests, we had to think carefully about the issues raised by the relatively new treatment she had for it, radical trachelectomy, which had not been covered in previously reported cases.

The facts are that our client should have had pre-cancerous changes picked up in 2004, which would have led to relatively minor treatment. Instead, her smear test was falsely reported as negative, so her pre-cancerous changes went undetected.  It was not until she had her next smear test in 2009 that any changes were picked up.  By this time, she had developed cervical cancer.

There was some good news in that due to advances in medical science, and because her cancer was still at an early enough stage, she did not have to have a hysterectomy. However, she still needed surgery.  She underwent a new surgical treatment called radical trachelectomy and pelvic lymphadenectomy.  This meant she could still have children.

As far as our client was concerned, although she now had various unpleasant symptoms associated with her menstrual cycle and intimate relationships which caused her to feel depressed and anxious, as far as she knew, that was the end of it.

However, in order to ensure she was properly compensated for these problems, we obtained expert evidence from a specialist who was instrumental in pioneering radical trachelectomy, and who had kept statistics on the women who had undergone that treatment, in order to obtain the most reliable data there was as to the issues that had to be faced.

He advised that in addition to now having a fourfold increased risk of the cancer coming back which she would not have had if treated in 2004, also, due to the way in which the surgery altered her reproductive anatomy, if she had more children, there was now a substantial increased risk that any pregnancy might miscarry, or would not continue to term, and that she would need Caesarean section as opposed to natural delivery of the baby. If a child is born severely prematurely, it can die, or have severe developmental impairment, requiring lifelong care.

Our client was a young woman who did not think her family was yet complete. She had not had further children by the time the claim settled.  These were therefore very serious risks for her to be facing.

We therefore considered carefully the three available options for awarding compensation to see which was best suited to her case. These are:

  1. Lump sum with nothing else paid in future. This is the “once and for all approach”, and is the most common kind of award;
  2. Part lump sum and part periodical payments for the rest of her life (mainly used in large claims and not suitable here); or
  3. Provisional Damages. This is a lump sum payment, but there is also a court order giving the right to seek more compensation if rare but clearly defined events occur in the future.

Provisional damages payments exist because if a rare event happens which leads to life changing injury, the claimant would be hugely undercompensated if their award did not include an amount to cover that injury. Rather than make a defendant pay compensation for an event which is very unlikely to happen, which would be equally unfair, the claimant can return to court to seek more compensation if that rare event actually happens.

Despite their advantages, in practice, provisional damages awards are rare, because they can only be awarded in limited circumstances, and defendants resist them, preferring a “once and for all” award so as to achieve certainty.

However, we managed to secure an order from the court in this case setting out how much should be paid by the defendant now for the ongoing symptoms, and the circumstances in which our client could re-apply to the court for a further award to reflect the fourfold risk of recurrence of cervical cancer, and the additional risks involved in having further children.

In that way, I hope we achieved a result which in no way penalised the defendant for providing a new treatment which had conserved our client’s ability to have more children, but at the same time, protected her against the risks involved in having more children due to her altered anatomy.

The legal issues involved in this case were new because radical trachelectomy is relatively new. We could not therefore find any previous cases where provisional damages had been awarded after radical trachelectomy, so we had to make sure our order covered all the possible risks and events.  We have since gone on to publish a report about the case to benefit other lawyers faced with similar issues.

My hope is that although it was upsetting and stressful for our client to have to endure this additional treatment and make a damages claim, the order we obtained gives her peace of mind that if anything else happens arising from the delay in diagnosis, she or her children will be able to seek further compensation.”

This area of law is challenging, so it is imperative that claimants with this kind of legal issue are represented only by lawyers who have experience of this type of claim.

If you have suffered from cervical cancer following cervical smear screening, and have undergone more invasive treatment that you would otherwise have needed, there might be more to your case than you initially realise.

Talk to a specialist clinical injury lawyer to explore your rights and options as soon as possible. Strict time limits apply for pursuing claims, so it is essential to find out where you stand right away.