What is the purpose of compensation?
When medical treatment falls below the required standard and causes injury, the consequences can be far-reaching, affecting not only a person’s health but also their financial circumstances.
The purpose of compensation is not to punish the negligent party, but to put an injured person (as far as it is possible to do so with money) back in the position they would have been in if the negligence had not occurred. Although money cannot restore a person’s health, an appropriate award will provide financial security and enable that injured person to access the care, treatment and support they need to move forward with their life.
What types of compensation are there?
Compensation is generally divided into General Damages and Special Damages.
What are General Damages?
General damages compensate for the pain, suffering and loss of amenity (loss of quality of life) caused by the injury or illness.
There is no precise mathematical calculation for general damages. The value of the claim is assessed by considering the nature and severity of the injury and its impact on the individual.
In England and Wales, Solicitors and Courts commonly consider:
- The nature of the injury, including its severity and symptoms.
- The pain and suffering experienced, including the treatment and recovery involved.
- The duration of the symptoms and whether the person makes a full recovery
- The impact on everyday life, including the ability to work, socialise, exercise, pursue hobbies and enjoy family life.
- Psychological consequences, such as anxiety, depression, PTSD or other psychological injury where supported by medical evidence.
- The prognosis and, where recovery is incomplete, whether further improvement is expected or the effects are likely to be permanent.
How are General Damages Calculated?
- A Solicitor will usually look at previous Court decisions involving similar injuries, together with published guidelines, which provide brackets of compensation for different types of injury.
- The guidelines are not a tariff and do not determine the exact amount a person will receive. They are a starting point to help assess what would be an appropriate award, taking into account the particular circumstances of the individual case.
- Even where similar injuries are involved, the symptoms, recovery, prognosis and effect on day-to-day life may differ significantly, and as a result, the amount of compensation awarded will also vary from case to case.
What are Special Damages?
Special damages compensate for the financial losses and expenses caused by the negligent treatment. Unlike general damages, special damages can generally be calculated precisely by reference to supporting evidence.
The starting point is to identify the financial position the person would have been in if the negligence had not occurred and compare this with their actual or expected position following the negligence.
The claim can include past loss (expenses and loss already incurred) and future loss (anticipated future expenses and losses).
What types of financial losses can be claimed?
Depending on the circumstances, a claim may include:
- Loss of earnings
- medical and rehabilitation expenses;
- the cost of care and assistance;
- travel and parking costs;
- prescription and healthcare expenses;
- specialist equipment;
- adaptations to the home;
- additional heating or utility costs;
- the cost of private treatment where appropriate; and
- other reasonable expenses resulting from the injury
How is a claim for loss of earnings calculated?
Past loss of earnings
This can usually be calculated by looking at what a person would have earned if the negligence had not occurred and comparing this with what they actually earned. Evidence such as payslips and employment records can help establish the loss.
Future loss of earnings
This is a more complicated calculation. It involves estimating what a person would have been likely to earn in the future without the injury and comparing this with what they are now likely to earn. Factors such previous earnings, career progression, age, qualifications, likely retirement age, and the extent to which the injury affects their ability to work are likely to be considered.
What is a claim for care?
This is a claim for the help and support a person required because of an injury or illness. This might include help with everyday tasks such as washing, dressing, cooking, cleaning, shopping or looking after children.
A claim for the cost of care can be made even if it has been provided by a family member or friend who was not paid, rather than a professional carer.
How is a Care Claim Calculated?
The amount claimed will depend on how much care was needed, how often and for how long.
Evidence such as medical reports, care diaries and statements from family members can help demonstrate the type and amount of care that was required; in some cases, reports from care experts are required to assess the level of care and support required both in the past and in the future.
Can I claim for treatment and rehabilitation?
A person may have paid for medical treatment, therapy or rehabilitation to help them to recover and manage the impact of their injury, or they may treatment or therapy in the future.
The reasonable costs of any such treatment and rehabilitation can be included in the claim for special damages.
A medical or rehabilitation expert report may be required to assess the person’s needs and recommend appropriate treatment. The report can help establish what treatment is required, how often it may be needed and the likely cost.
What if I have carried out home adaptations?
Sometimes home adaptations are required or specialist equipment is required to enable an injured person to move about in their home or carry out certain tasks. The cost of such adaptations/ equipment can be included in the special damages claim.
How is the claim for adaptations calculated?
A professional assessment or expert report may be required to identify what adaptations or equipment were or will be required and to provide an estimate of the likely costs.
Is evidence required to prove financial loss?
Evidence is important to prove financial losses. Depending on the type of loss, this might include:
- receipts and invoices;
- bank statements;
- estimates and quotations;
- medical evidence;
- care assessments;
- occupational therapy evidence; and
- expert evidence about future needs.
It is therefore helpful to keep a record of expenses and retain relevant paperwork from the outset.
Conclusion
Every medical negligence claim is different, and there is no standard amount of compensation that applies to every case. The value of a claim will depend on the individual circumstances, including the nature and severity of the injury, its impact on the person’s life, and any financial losses and future needs arising from the negligence.
Ultimately, the aim of compensation is to provide appropriate financial support for the consequences of negligence and, as far as money can, put the injured person in the position they would have been in had the negligence not occurred.
Ms Krishna Kotecha Parner and Specialist Medical Negligence Solicitor, said
“Every clinical negligence claim is unique. The aim of compensation is not to punish the wrongdoer, but to recognise the impact of the injury and ensure that those affected have the financial support they need for their recovery, care and future needs.”
