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How to report medical negligence in a care home

Medical negligence solicitor Jeanette Whyman, from Wright Hassall, shares her advice for reporting medical negligence when it occurs in a care home and explains how to take legal action should you need to escalate your complaint.

The decision to place a parent in care isn’t easy, particularly when abuse cases seem to dominate the news, but knowing what to do if you suspect your parent had been the victim of medical negligence or ill-treatment can be a comfort when they make the move.

Spotting signs of medical negligence

Depending on your parent’s level of incapacity it may not always be straightforward to distinguish between genuine medical negligence and the side effects of being unable to care for themselves. However, there are a number of warning signs to look out for:

  • Bed sores or inadequate treatment thereof
  • Dehydration or malnutrition
  • Over (or under) medication
  • Unexplained bruising or accidents

This list is by no means exhaustive. There can be many other physical or mental signs of abuse that you should look out for.

Making a complaint

If you’re worried your parent is being ill-treated or a victim of a medical mistake, raise your concerns informally with their care home manager who may be able to offer a straightforward explanation. If you’re unhappy with the manager’s response you should make a formal, written complaint about the suspected ill-treatment sent to them or, if the care home is part of a group, to the CEO.

It’s important at this stage to set out all your concerns clearly and to keep a record of your communications with the manager, CEO and any members of staff you suspect may be responsible for the abusive or negligent treatment, in case you need to refer to them as evidence later on. The care home should give you a copy of their complaints procedure as well as a list of actions for you to follow to formalise your complaint. Should the situation escalate, hiring a lawyer can provide valuable guidance and representation.

If you don’t receive the reassurance you need from your parent’s care home that steps will be put in place to prevent further ill-treatment to protect your parent and other residents, you can escalate your complaint by sending it to the Care Quality Commission or the Parliamentary and Health Service Ombudsman.

Preparing for legal action

If your parent has suffered as a result of poor medical treatment and the care home has refused to acknowledge or apologise for it, then you may be able to pursue a medical negligence claim through the civil courts. Prior to taking legal action you should:

  • Record as many details about your parent’s treatment as you can remember and the effect their injuries had on them.
  • Keep all relevant documents referring to your parent’s care such as your contract with their care home and all written communications with staff, managers and regulatory bodies.
  • Record all related expenses – this is particularly applicable if you decide to enlist a solicitor’s help or have to move your parent to another care facility.
  • Keep a ‘care’ diary to record the time spent looking after your parent.

Who can make a medical negligence claim?

If your parent is still alive and is able to give you written permission to act on their behalf this can be vital in bringing a negligence claim against a care home. If they’re unable to give you permission because they lack the capacity (as defined by the Mental Capacity Act 2005) you can complain on their behalf. You can also make a complaint on your parent’s behalf after they’ve passed away but it’s important to be aware of time limits.

Time limits for medical negligence claims

Under normal circumstances you must bring a claim within 3 years of the date of your parent’s injury(s) or death or from when you first became aware that their injury(s) was due to medical error.

There are exceptions but these relate to minors and to those suffering from mental illness. In the case of the latter, the 3 year time limit starts from the point at which the patient recovered from their illness.

Establishing a medical negligence claim

Medical negligence has a specific legal definition. Your appointed solicitor will assess your claim using 3 criteria:

  1. The healthcare professional looking after your parent failed in their duty of care. This means that their care fell short of what would be deemed acceptable by other healthcare practitioners under similar circumstances.
  2. Your parent was injured or received a worse than expected outcome (given the nature of their condition and the quality of the care they received). This means that the action (or lack of action) by the healthcare practitioner is likely to have caused the harm.
  3. The injury your parent received was as a result of a ‘breach of duty’ in other words, the harm to your parent can be traced back directly to the negligent treatment received.

Your chances of success will depend on the extent of the breach of duty and the harm caused to your parent. Your solicitor will review these factors as well as taking into account independent, expert medical opinions before advising you whether or not your claim is sufficiently strong to proceed with legal action.

Funding your claim

The way in which medical negligence claims can be funded has changed and legal aid funding is no longer available. Currently the options available are:

  • Legal expenses insurance: you may be covered under your or your parent’s household or other insurance that will cover some or all of your legal costs. You may also be eligible for ‘After the Event’ insurance to cover charges and fees. Your solicitor will explain how this works.
  • Conditional Fee Arrangement: often solicitors offer to take your case on a ‘no win, no fee’ basis. There are new rules governing these arrangements and your lawyer should explain exactly how this works. Broadly speaking, if you win, most of the charges and fees incurred will be recoverable from the other side and the remainder would come from your compensation. If you lose, you won’t be charged legal fees although you will need to pay for charges such as court fees and expert medical reports.
  • Private funding: you can fund the cost of the claim yourself through personal savings, releasing private equity etc.

Going to court

Most injury cases usually end up settling out of court once details of the claim have been set out and responded to. However, court is the most likely option if the care home refuses to admit liability. The following sets out the usual process:

  1. Pre-action protocol: A Letter of Claim is sent to the Defendant (the person or organisation against whom the claim is being made i.e. your parent’s care home) setting out the allegations. The Defendant must reply (a Letter of Response) within 4 months, stating whether or not they accept the claim (either in full or in part). This reply will decide whether or not to instigate court proceedings. A failure to reply will also trigger court proceedings.
  2. Court proceedings: A claim is issued in either the High Court or County Court. The procedure is straightforward and requires exchange of evidence and an assessment of the likely value of the claim. If the value of the claim is high it might be dealt with at a later date.
  3. Trial: Once the evidence has been assessed and the parties (you and the care home) have negotiated on the issues involved, the claim can go to trial which should take place within 12 to 18 months of the claim being first issued. The judge will decide at this stage if your claim will succeed or not.

Valuing your claim

The value of your claim will depend on a number of issues including pain, suffering and likely future losses (such as ongoing care requirements). Compensation will be made up of ‘general’ damages relating to pain, suffering and loss of enjoyment of life and ‘special’ damages relating to past and future financial loss, such as the cost of care.

A solicitor can advise you on how the compensation is likely to be assessed, whether your claim is likely to be settled out of court and how this process is handled.

Jeanette Whyman has extensive knowledge of medical practices and procedures which enables her to assess a claimant’s case quickly and efficiently. For more information you can email [email protected] or call 01926 883019.

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