- August 3, 2012
- By Jon Nicholson
- 0 comments
Compensation for clinical negligence after an accident
One problem which occasionally occurs in personal injury claims is the situation where a person injured as a result of another’s negligence is then unlucky enough to receive negligent hospital treatment for those injuries, which makes matters worse. An example is a case which I recently dealt with where my client’s back was broken when the car in which she was travelling was driven off the road and into a tree. The hospital to which she was taken then negligently failed to diagnose the fracture and mobilised my client, resulting in a spinal cord injury and paralysis which would not otherwise have occurred. Solicitors and insurers often get confused about who should compensate the injured claimant for the worsened injury in the circumstances.
The approach of the solicitors acting for the motor insurers in my case was typical. They insisted that their clients did not have to compensate my client for her paralysis, because she would not have suffered this if she had received correct medical treatment. They chose to overlook the fact that my client would also have avoided paralysis if she had not broken her back in a road traffic accident for which they had admitted that their clients’ driver was responsible.
From the perspective of the injured claimant, the position is actually relatively simple. The person whose negligence caused the original injury must compensate the claimant for all of the consequences of that injury, including those caused by negligent medical treatment unless such treatment was “so grossly negligent as to be a completely inappropriate response to the injury inflicted”. The Court of Appeal confirmed this in a case called Webb v Barclays Bank and Portsmouth Hospitals NHS Trust.
The “gross negligence” required was not defined, but is clearly more than common-or-garden negligence and is likely to be very difficult to prove. I am not aware of any reported case where those responsible for the original accident have escaped liability for a worsened outcome caused by medical treatment on the grounds that such treatment was grossly negligent.
Therefore, the usual position is that people unlucky enough to be injured in these circumstances need only claim against the insurers of those responsible for the original accident. Those insurers may then claim a “contribution” from the treating hospital if they can show that such treatment was negligent and worsened the injuries, but the claimants need not be involved with this. The success or otherwise of such a contribution claim does not affect how much compensation they receive for their injuries.
If the insurers of those responsible for the original accident wish to argue that negligent medical treatment broke the link between that accident and the worsened outcome, then they need to allege that such treatment was “grossly negligent”. They need to say this in writing; either in correspondence or in their formal “defence” if Court proceedings have started. Once the insurers or their representatives have put this in writing, then it is both prudent and safe for the injured person to bring a claim against the hospital also, so that the claimant is still compensated even in the unlikely event that the insurers are successful in proving “gross negligence”. If the hospital turns out not to have been negligent at all, then it is the insurers rather than the injured person who will have to pay the hospital’s legal fees, because the claimant can say that they only sued the hospital because the insurers alleged said that they were grossly negligent.
The time limit for bringing a compensation claim for either an accident or negligent medical treatment is normally 3 years. However, in a case where it is suspected that the outcome may have been worsened by poor medical treatment, it is sensible to start Court proceedings much earlier, so that the insurers have to serve a defence within the 3-year time limit for adding the hospital to the claim if they are formally blamed. If the hospital is not blamed in the original defence and the insurers then want to amend to do so after the deadline for suing the hospital has passed, then this delay is likely to be a good reason for the Court to refuse to allow the insurers to amend their defence in that way.
The other situation where the injured person may wish to make a claim against the hospital is where there is some doubt about whether those said to be responsible for the original accident were in fact to blame or wholly to blame. If the claim for the original accident may fail altogether, then the injured person may wish to claim against the hospital for the worsened outcome resulting from negligent medical treatment, so as to have a chance of receiving some compensation even if the accident claim is unsuccessful.
Similarly, if there is an allegation that the accident victim was partly to blame (known as “contributory negligence”), then this may result in a percentage reduction in the compensation paid on behalf of those responsible for the original accident, but not in a reduction of compensation paid for negligent medical treatment. Therefore, if those responsible for the accident are saying that there was contributory negligence, this may also be a reason to make a claim against the hospital.
Sometimes, it is possible to use these complexities to the injured person’s advantage. If the insurers of those responsible for the accident cannot prove gross medical negligence, but wish to claim a contribution from the hospital on the basis of ordinary negligence, then they may have difficulty doing so without the injured person’s assistance. The injured person is obviously a very important witness regarding their treatment. It is therefore sometimes possible to do a deal whereby the injured person offers to assist the insurers in claiming against the hospital in exchange for other concessions. For example, in my case mentioned earlier, there was an allegation that my client was guilty of contributory negligence in failing to appreciate that the driver had been drinking. We were able to persuade the insurers to drop this allegation (which was disputed anyway) in exchange for agreeing to assist them in claiming a contribution from the hospital, which had undoubtedly been negligent, although probably not grossly negligent.
As can be seen, claims for compensation for injuries caused by both an accident and medical negligence are particularly complicated and it is easy for the lawyers to make mistakes. Anyone who believes that they have received negligent medical treatment after an accident would be well advised to instruct a solicitor who is an accredited specialist both in personal injury claims and clinical negligence claims. There are not many solicitors who have both qualifications, but Ali Malsher, Jenny Kennedy and I fall within this category.