Medical negligence criteria

[potsandmud]

Looking for advice from solicitors only please. I have enquired with various firms about a matter which has gone on for some years and where I have one medical professional’s word against another in what has led to extreme injury and damages for me and my family.

Theyre now considering the case - as it would need to be no win no fee. However the losses are substantial and it is a case which would
highlight a serious division between private and nhs care and is in the news a lot due to the surge of people seeking help for it.

My question is - how do lawyers decide these cases and what can I do to get the best representation?

TIA

In terms of the best representation, the honest answer is you shop around & are prepared to pay big £££ for it, but those people aren’t typically your no win no fee people.

It’s a tricky one with medical negligence cases because a lot of it hinges on the Bolam test, which essentially looks at the treatment/diagnosis/etc you received and look at whether a reasonably competent professional would have done the same, it’s compares the practitioner to their peers essentially. This does make things complicated because in most cases the answer to that will be yes, something can be wrong but still not meet the threshold here. When I was finishing my training contract we had a few cases like this, one person who had been misdiagnosed and treatment began for a certain illness, it had caused harm, and it turned out the person never had that illness, but the case found no medical negligence because despite the fact it was wrong it was decided that based on the triage info, the scan results and blood results available another doctor would have made the same call.

So essentially it depends whether what has happened in your case is SO bad that nobody else would have done it in which case your case would be successful, or whether it was a bad call but ultimately another doctor would have made the same call so therefore your case fails, having one doctor who disagrees isn’t enough.

It’s not so much that the original dx was wrong, it’s that they failed to monitor and make a full diagnosis of the other disorder which the medication I was prescribed exacerbated and caused me to torch my life and my family security. They were responsible for my care over years and failed to diagnose what was completely evident to my much more senior clinician who I am now with. And this is in spite of me suggesting said diagnosis and also asking them about the medication I am now on. And which was suggested to me by another clinician I saw as part of a retreat I went on. Who said that my medication was wrong and I just didn’t know how badly I was affected until it was too late.

I’d like to think my claim would be upward of 7 figures due to damages of actual loss.

So in that case it would be assessment of whether another reasonably competent professional would have behaved the same way and done those same things. If the answer is yes then the case falls down, and honestly unless there is clear cut guidance for example which was not followed, it is difficult to get past the Bolam test. The test really does protect doctors, it makes it very difficult for patients to prove negligence because it’s so broad that as long as another competent doctor would have acted the same way, it can be wrong while not being negligent and therefore no case.

Your senior clinician isn’t totally relevant for the test either because the Bolam test is a test of peers. So for example a neurosurgeon will know more about a brain tumour than a GP, so for example if a GP told me my headaches were due to dehydration but I actually had a brain tumour I can’t claim the GP was negligence because my neurosurgeon immediately knew I had a brain tumour, that’s not a peer comparison. What matters is whether another GP would have made the same assessment. So in your situation it isn’t what this senior person knows or did, it’s what a peer of the decision maker would have done.

It’s also worth reading up on what is actually available in compensation even if successful, this is things like pain, physical harm, mental suffering, how injuries have impacted your life & enjoyment etc, or money to reimburse if you have paid for aids etc.

But it isn’t a repayment for everything, and as an example if due to a mental condition you sold your house and bought a £60k sports car then spend the rest of the money on slot machines, you’re not going to get that money back in compensation.

Even if you can prove causation by the very medication I was being given?

It’s tricky because there isn’t a medication that would specifically cause you to spend your life savings for example. If a medication impaired your logic, or made a person paranoid for example, then you can be compensated for the impact that has/has had on your life but that does not = receipts for what you might have spent because unless every person who has taken those medications also spent their life savings then it is not JUST the medication that made you behave that way, if that makes sense.

No win no fee is indemified to cover expenses, not claimant costs, in the event of a loss so chances of success have to exceed 51%

One of the main symptoms of the disorder that was exacerbated and not diagnosed by the original doctor for over 4 years - despite very obvious evidence- is insane levels of spending. And when diagnosed it is often advised that vulnerable individuals should not have access to finances because of this. So whilst not all the losses are necessarily to do with the original doctor, decisions I made I were directly influenced by the medication I was on.

True, except I’d add that in reality no win no fee solicitors would never take a case if it was only 51% or slightly over, they only really take cases they believe they have a high chance of realistically winning as it’s not worth their time otherwise

no win no fee lawyers tend only to take cases they are pretty ure of winning not 51/49, so often in complex cases you can't find a no win no fee lawyer to take case as everyone said above it's the Bolam test, also with side effects it is again about how widely known side effect was how many it affects 1 in 10 or 1 in 10,000 or whatever in between and how serious the side effect was
it could be the side effect is moderately common but normally mild but you had it very severely all these type of things have to be weighed up
I am sorry for you but the fact that there are so many opinions seems to me to indicate it is definitely not cut and dreid as to whether negligence happenned and even if negligent how much that contributed to your condition etc
you probably need yet another opinion

Thank you. This is helpful and I will do
some more research. Appreciate your comments

There isn't any medication that directly causes users to make unhealthy or financially unwise life decisions. In a legal sense? If there was then every person that took it would sue when they spent their life savings or acted in an unreasonable or unwise manner. So in that respect it might be difficult.

It seems like you're talking about a mental health diagnosis? That's very hard to prove negligence, and your OP suggests it's a he said he said matter....I wouldn't imagine anyone would take this on no win no fee, too risky.

It’s not so much the consequences of spending. It’s the fact Indid not receive a complete dx, and that had enormous implications for me. And I had three medical professionals as
an aside ask me if I was on mood stabilisers - before I twigged I was clearly not with people who were going to admit a mistake and essentially discharged me with no explanation

Well I'm a clin neg & PI lawyer of over 20 years and that is not the case. 51% is the insurer's cut off figure

you would have to show on the balance of probabilities , that the medication caused you to spend that money so you’d need good evidence that would persuade a judge that it was the medication and not your own bad judgment.
In addition the losses would have to be “foreseeable “
How long ago was it that you became aware your medication was linked to your losses?

With MH diagnoses (or not) they admit that they are trying to see what works, rather than knowing how to 'cure' your illness. It's not like having a broken bone. If something didn't work then it's going to be hard to prove they didn't try and do it in good faith.

MH provision in the NHS isn't great. I don't know if pursuing this 'no win no fee' law suit against them will give you an outcome that will ultimately help you improve your life.

Op
please be careful here. Medical negligence cases are notoriously difficult to win simply because doctors don’t like to disagree with each other except in extreme ultra obvious circumstances. To add to that mental health conditions are treatments are even more difficult to prove as you’d have to prove beyond a reasonable doubt cause and effect . That’s an even higher bar.
hopefully you’ll find a no win no fee solicitor but don’t rack up high legal fees chasing this if you can’t afford them as you could end much worse off.
im sorry this happened you, it must be so frustrating .

Do you mean you weren't treated for bipolar disorder and went on to financial ruin due to your spending? What were you treated for? Not a solicitor but a psychiatrist, so can offer a suggestion of whether the treatment plan would have been deemed appropriate or not.

I’m not a solicitor so please ignore my post if it doesn’t meet what you’re looking for. I have often prepared paperwork for employee tribunals alongside solicitors in my work life and I also have bipolar, which is why I am posting. The situation you describe could easily happen with someone with bipolar and does happen.

I was diagnosed in my 50s when I had my first full episode of hypomania - although with hindsight I had first signs in my early 20s. From my research, it is very common for people with bipolar to be first diagnosed with depression only until clear signs of mania present sometimes over a decade later. Therefore they can be offered antidepressants when the diagnosis is depression, most of which could aggravate mania symptoms. My depression has only ever been mild so I was never on antidepressants myself.

I am really sorry you are in this situation. It would be tricky for the circumstances of bipolar initially treated as depression to meet the Bolam test. I suspect it would be similarly tricky for your circumstances, as they do sound similar if not the same. I hope the solicitors you’ve consultant come back with useful information for you soon.

Unfortunately from what you have said here it would be nearly impossible to prove what you are hoping. Nearly all complex mental health conditions are diagnosed by elimination, starting with the most common, and likewise treatments tend to start with lowest doses and the ones with fewer side effects. No drug or absence of it can be proven to cause excess spending. At best you can you would be looking at inability to seek and stay in employment for instance. I worked in a no win no fee call centre at one point and we only did physical medical injuries as they can be proven

Medical negligence cases no longer rely solely on Bolam. Bolitho also applies
https://www.ukcmls.co.uk/articles/tony-elliott/how-the-bolitho-test-changed-the-understanding-of-medical-negligence

They were responsible for my care over years and failed to diagnose what was completely evident to my much more senior clinician who I am now with. And this is in spite of me suggesting said diagnosis and also asking them about the medication I am now on. And which was suggested to me by another clinician I saw as part of a retreat I went on.
Sorry but I agree with pp, the senior clinicians you are now with are they private? They are much further down the line and have more information and evidence than the nhs clinicians early on. And what is the 'retreat you went on, who was at it/referred you/purpose.
I would actually be more concerned that these private providers are taking advantage.

No drug or absence of it can be proven to cause excess spending.

Theres been a lot in the news recently about ropinirole causing extreme behaviours including gambling, excess spending and extreme sexual activity. There have been some compensation claims paid as a result. It’s not true to say no drug has been proven to cause excess spending. @potsandmud it might be worth finding out which lawyers have been involved in previous cases and consult them?