The Litigation Series – Week 5 – What Is My Medical Negligence Claim Worth?

In our first blog in The Litigation Series, we explained that if a medical negligence claim is successfully proven, then the injured person is able to recover compensation to put them back in the position that they would have been in had the negligence not occurred.

Awards for damages can be categorised into two distinct categories:

1. General Damages
2. Special Damages

General Damages

Colloquially referred to as Pain Suffering and Loss of Amenity (‘PSLA’), this head of damage compensates an injured person for the pain, suffering and loss of amenity which is attributable to the Defendant’s negligence. When determining PSLA Courts will rely on the opinion of an independent medical expert (we cover this in Week 5 of The Litigation Series) as well as the Claimant’s own evidence in the form of their Witness Statement (covered in Week 10 of the Litigation Series).

When assessing general damages, legal practitioners refer to the Judicial College Guidelines to value pain and suffering. The guidelines helpfully categorise injuries into different body parts and provide an indication of the likely value of an award. For example, where a Claimant suffers an injury, which results in a loss of taste, the JC guidelines, provides a bracket of £18,020 – £23,460 for an injury resulting in an impairment of the senses.

Practitioners will also consider quantum reports for similarly reported cases as these can often provide valuable guidance when justifying the sum claimed for the Claimant and when negotiating with the Defendant.

Special Damages

This head of loss is to compensate the injured person for any financial losses that they have incurred as a result of the injury and includes both past and future financial losses. Each case will depend on the facts and the severity of the injury but common recoverable losses include:

• Loss of Earnings
• Treatment costs
• Gratuitous care and services
• DIY and gardening
• Travel expenses
• Disadvantage/handicap on the open labour market (‘Smith v Manchester’ awards)
• Travel expenses

In addition to the above and in cases of severe injuries such as a brain or spinal injury, special damages may also include costs for:

• Accommodation and/or adaption
• Aids and Equipment
• Treatment and Therapies
• Holidays
• Lost years
• Loss of pension
• Case management
• Deputyship

Calculating Past Loss

This is usually a straightforward task and at the outset of the claim we advise our clients to retain documentation of any invoices and receipts wherever possible in relation to any expenses they have incurred relating to their injury. In the absence of any documentary evidence losses will likely be challenged by the Defendant. In more complex cases past losses may need to be supported by expert evidence.

Calculating Future Losses

Depending on the injury, losses may continue into the future but these are claimed separately under future losses. For some losses such as care and accommodation experts will be instructed to support the claim and help quantify it.. For example, in the case of Claimant who is wheelchair bound, a care expert will be able to comment on how many hours of care and assistance the Claimant will require and the likely period of that care.

A multiplier and multiplicand approach is adopted to calculate future losses.

The multiplicand represents the Claimant’s annual loss whilst the multiplier represents the number of years the Claimant will suffer a loss. The multiplier is calculated by reference to the Ogden tables and a discount rate (currently set at -0.25%) is applied to take into account that a Claimant is benefiting from an accelerated receipt of damages.

It is worth mentioning that when determining the appropriate multiplier for future losses, further discounts to account for employment, disability and education are applicable.

Once it has been identified which losses the Claimant will be claiming, these will then be set out in a draft Schedule of Loss.

Duty of Mitigation

Losses incurred by the Claimant must be reasonable and the Claimant should take steps to ensure that they mitigate their losses, as any losses which have been unreasonably incurred will be challenged by the Defendant.

Provisional Damages

Once a claim concludes, it settles on a full and final basis. However, there will be some cases where a Claimant is entitled to return to Court if there is a chance of a serious deterioration in their condition sometime future. Expert medical evidence will be required to determine this issue.

Damages in respect of Fatal Claims

We have explored above the losses that can be claimed in the case of a living claimant. However, where the negligence results in an unfortunate death, in addition to the ordinary losses that can be claimed, further losses can be claimed under the Fatal Accidents Act 1976.

The Law Reform (Miscellaneous Provisions Act) 1934 (LRMP), entitles the estate of the deceased to bring a claim for the losses that the deceased could have claimed if they had survived. Under the Act, the estate is entitled to make claims for:

1. Pain, Suffering and Loss of Amenity the deceased suffered from the date of injury until death
2. Special damages incurred between the date of incident and date of death
3. Funeral expenses provided they were paid by the estate.
4. The cost of probate

In addition, a separate cause of action can be brought under the Fatal Accidents Act 1976. Claims under this act are essentially for dependency claims and the main heads of losses are:

1. Statutory Bereavement Award – currently this is set at £15,120 for deaths that occurred after 1 May 2020
2. Funeral Expenses – if paid by the dependants of the estate
3. Loss of intangible benefits – this is usually an award for the loss of love and affection following the death of a spouse/parent and is often known as Regan v Williamson award
4. Loss of Past and Future financial and services dependency

If you have suffered injuries due to medical negligence you may be entitled to compensation. For a free initial consultation with one of our medical negligence experts please call 0330 822 3451 or request a call back online.