It’s one of the questions our clinical negligence team are most frequently asked: how is medical negligence compensation calculated?
For those who have suffered as a result of medical negligence, there are a lot of things to think about when deciding whether to make a claim. You may want to see better care for patients in the future, learn what sort of compensation might be available to you, and of course, understand the strength of your claim and how likely it is to be successful.
To help with that decision, we’ve pulled together a useful guide, with added insight from our Head of Medical Negligence and Partner at Prosperity Law – Jane Lynch
Two types of compensation
Before we can explain how medical compensation is calculated, we need to set out the difference between the two types of damages (amounts of money awarded by the court) that can be claimed for in the case of medical negligence.
The first is general damages, which is compensation given for the physical and psychological pain and suffering, and ‘loss of amenity’ which is your inability to do things that you could do before the accident that has been caused by the negligence of a doctor, nurse, or other health professional.
The injuries and resultant pain, suffering, and loss of amenity must have been avoidable, for your claim to be successful.
The second is special damages, which is compensation given for financial loss that’s come as a result of the injury. Financial loss can include loss of earnings and medical expenses incurred by you since the injury occurred. It can include compensation to cover aids and equipment, medical treatment, adjustments to your home or help from carers to make things easier. And it can also cover future financial loss you might incur, if you continue to pay for ongoing care or continue to lose income due to your injury.
Calculating general damages
Pain and suffering are different for every person- which means that calculating the amount of compensation due, can be a tricky business. To simplify the process, legal teams and the courts use the Judicial College Guidelines. These provide a starting point for calculating compensation, based on the average compensation granted within each injury group.
Your legal team will usually obtain detailed information from you about how the injury has affected you and might also gather expert evidence to fully understand your injury and the effects of that injury. This will make sure that the appropriate amount of general damages is calculated during settlement, if your case should be successful.
Jane Lynch commented:
“We understand that for many individuals and their families, pursuing a medical negligence claim is the only option left to them. That’s why it’s absolutely essential that we, as your legal team, fully understand what injury has been caused and the full effects that it’s had on your physical and, psychological health.
Our approach is to be understanding and reassuring throughout this process – as we know from experience it can be daunting for those involved.”
Calculating special damages
When calculating Special damages we work closely with clients to ensure the level of compensation is fully explored.
Consideration should be paid to past, present, and future costs which relate to:
- Loss of income – due to time off work for recovery, or if you had to move to a lower-paying role due to the injury incurred.
- Medical treatment costs – including consultation fees, hospital charges, or private fees incurred outside of NHS care, such as physiotherapy or prescription charges.
- Care costs – if you now need regular care which you have to pay for, for example further help at home.
- Aids and equipment such as a walking frame, wheelchair.
- Home adaptations – for any adjustments you have to make to your home in line with your new capabilities.
- Vehicle adaptations – if you’ve had to, for example, switch to a more suitable vehicle or require adaptions in line with your injury.
It is helpful to keep a diary of your injuries and the effects of your injuries. When keeping a diary, include details like your symptoms, events that occur in relation to your injuries, any medicine taken, or treatment received. You should also keep receipts for any expenses incurred, for example receipts for treatment costs and travel. This will help you and your legal team to put together a schedule of the costs and this will be used to value your claim.
The strength of a claim
Before you pursue a medical negligence claim, you might want to know how likely you are to be successful – and this depends on the overall strength of your claim.
A successful medical negligence claim has to prove four different things:
- The health care provider owed the patient a duty of care.
- There was a breach to that duty of care – meaning the duty of care was broken.
- This breach caused the patient an injury or loss, known as causation.
- The patient suffered injury or loss, damage.
You need to prove that there is a greater than 50% chance that negligence caused your injury. The strength of your claim depends largely on the evidence you have and the independent medical expert’s opinion on the care you received.
Other useful information
For those who have been adversely, and sometimes severely, affected by medical negligence, financial compensation will go some way to easing the transition to life, post-injury. But settlements can also include non-financial compensation, such as a written apology.
You might also be waiting for compensation to fund important treatments that could make a difference to your quality of life. Medical Negligence claims can often take time to settle, so it is important to get the treatment you need as soon as possible. We can help you navigate any available funding that allows you to access treatment and concentrate on getting better.
Legal costs are another consideration. We offer ‘No win No Fee’ arrangements. There may be some deductions from your compensation for legal costs if you have a ‘no win no fee’ arrangement. Your legal team will explain to you how much may be deducted from your compensation.
We hope the above has helped explain how medical compensation is calculated, here in the UK. If you would like to have a confidential discussion with our expert team, led by Jane, please don’t hesitate to get in touch at jane@prosperitylaw.com to arrange a suitable time.
Want to find out more about medical negligence claims? Check out our answers to your most frequently asked questions here.
