The COVID 19 epidemic has impact every aspect of our day to day lives. Understandably, this may cause concern about the impact on legal claims – and how access to justice will continue in these difficult and uncertain times.

Accessing a Specialist Solicitor 

Our clinical negligence solicitors are used to working flexibly and to finding the approach that works best for our clients whether that means communicating electronically, or meeting them at our offices, in their homes or in another setting such as a hospital or a care home.

Although we are not currently able to meet clients in person, our specialist clinical negligence team at Freeths is here to support and advise both new and existing clients. We are available for meetings and consultations via telephone, email, FaceTime, WhatsApp, Skype or any other digital platform that works for you.

We operate a paperless system so save for face to face meetings the way we conduct our work has not changed significantly. We have the necessary IT and other equipment to continue to provide the same high level of service to our clients at this difficult time.

If you or anyone else you know is in need of support and guidance relating to clinical negligence matters, then please get in touch by phone (01865 78100) or email us on clinicalnegligence@freeths.co.uk

Complaints about Healthcare

Many health organisations, including NHS England, hospital trusts, GP and dental practices, have temporarily paused their complaints processes to enable them to prioritise front line services. This applies to both new and existing complaints.

This ‘pause’ period is currently due to last until the end of June 2020, but may be extended. There is also likely to be a significant back log of to be reviewed and investigated when the pause is lifted. As a result patients are likely to face a considerable wait for a response.

New complaints can still be made and these will be logged, but in most cases they will acknowledged with no further steps will be taken during the ‘pause’ period. However, the NHS has confirmed that organisations will still monitor complaints receive to see whether they raise issues of patient safety, practitioner performance or safeguarding so that immediate action can be taken in appropriate cases.

The Parliamentary and Health Service Ombudsman has suspended acceptance of new health service complaints and will not progress any existing complaints where to do so would involve making contact with the NHS.

Limitation 

If you think that you may have a claim it is important to be aware of the time limits and to seek legal advice as soon as possible. These time limits are not suspended while a complaint is ongoing and they continue to run despite the covid-19 pandemic. It is important that you do not risk jeopardising your potential claim by waiting for a prolonged complaint process to be resolved or by waiting to seek legal advice .

In order to bring a clinical negligence claim in England or Wales, it is necessary to formally commencing proceedings in the high court or the county court by issuing a Claim Form within 3 years of the date of injury. This is known as ‘limitation’.

It is not uncommon for a patient to be unaware of errors in treatment or that the have suffered an injury as a result until sometime after it has taken place. In such cases, the 3 year limitation period starts to run from the ‘date of knowledge’ rather than the date of injury. This is the date the patient first knew, or that a reasonable person in their situation should have known:

1. that they had suffered a significant injury;

2. that the injury was capable of being attributed to potential negligence (ie to something that the defendant had been done or not done); and

3. the identity of the person or organisation responsible (the defendant)

For children, the three year limitation period will not begin to run until their eighteenth birthday.

If a person does not have mental capacity to make decisions for the purposes of bringing a claim, for example because of a brain injury, then limitation will not start to run unless or until they regain capacity.

If you are bringing a claim in relation to someone who has died then, provided that the limitation period had not expired during their lifetime, the time limit normally starts to run from the date of his or her death. However, in certain circumstances it may run from their executor or dependants’ date of knowledge if this is later.

If a claim is not brought within the limitation period then it cannot be pursued without the permission of the Court, which is only granted in rare circumstances. Therefore it is important to speak to a solicitor about your potential claim as soon as you can to avoid running the risk that your claim will be “out of time” leaving you unable to claim compensation.

How are ongoing cases affected? 

We continue to keep our clients updated and involved in every step of the process so that we can respond to their needs and secure the best outcome for them.

The COVID 19 pandemic has inevitably had an impact on healthcare resources and on the timescales in which both medical experts and defendants can respond to developments in individual’s cases. We understand the pressures that doctors and healthcare providers are under and we are working with them to progress cases in a way that is sympathetic to their current difficulties, but best serves our clients.

Whilst we are seeing an increase in requests for extensions from defendants and slower response times from medical experts, we are taking proactive steps to minimise the impact of any such delays and to ensure that we make progress with our own investigations.

Whilst the majority of clinical negligence claims are resolved without the need for a trial, the courts are still operating with hearings and trials being conducted remotely using video conferencing. The court timetables steps that need to be taken in the proceedings may be slightly more protracted in specific cases to allow for issues caused by COVID 19, but we continue to be proactive seeking to resolve claims and secure interim payments of compensation at the earliest suitable opportunity.

We have already settled a number of claims during the COVID 19 pandemic through negotiation and via virtual mediations using video or telephone conferencing. We understand how important it is to progress claims to help our clients and their families obtain the answers they seek and to enable them to benefit from potentially life changing compensation at a time when they may need it most.

 

Freeths LLP handle a broad range of clinical negligence cases from all over England and Wales. We have particular expertise in high value and complex claims including brain injuries, spinal injuries, cerebral palsy, fatal claims, and other life changing injuries. 

Our national clinical negligence team is led by: 

- Carolyn Lowe, Partner (Oxford/Milton Keynes/London/Bristol): 01865 781019 carolyn.lowe@freeths.co.uk

- Karen Reynolds, Partner (Derby/Stoke on Trent/Birmingham): 0845 274 6830 karen.reynolds@freeths.co.uk

- Jane Williams, Partner (Leicester/Nottingham): 0845 272 5724 jane.williams@freeths.co.uk 

For further information about our team and how we may be able to help you, visit our website at: http://www.freeths.co.uk/legal-services/individuals/clinical-negligence/