When choosing a solicitor to pursue a medical negligence, sometimes referred to as a clinical negligence claim, it is an important decision and at times it may be difficult to decide what is best for you and your claim in the long run – funding your claim is just one of the considerations you need to carefully think about, but neglecting to check all of the details and options available could result in you being financially liable it could also result in you missing out on some of your compensation.

Legal Aid Option

Legal Aid used to be available in pursuing a medical negligence case, it is now only available in very limited circumstances. Legal aid has now been withdrawn for medical negligence, except for cases involving children suffering neurological injuries during pregnancy, birth, and in the eight-week post-natal period.

 

Understanding Your Contract

The overwhelming majority of medical negligence claims are pursued by solicitors with the benefit of a Conditional Fee Agreement (CFA). Although there has been recent changes in the law following the introduction of new legislation, The Legal Aid, Sentencing and Punishment of Offenders Act 2012, flanked by changes in the Civil Procedure Rules. Flowing from that the introduction of qualified one way cost shifting (QOCS), which prevents a Claimant from being liable to pay the opponent’s costs if they lose the case. However you must be aware that there are still instances where the Claimant will be liable to pay the opponent’s costs. When you choose your Solicitor to deal with your medical negligence claim they should discuss with you the option to purchase an ‘After the Event’ (ATE) insurance policy, which protects your financial position if you fail to beat an offer made by the opponent to settle the claim. There is also a possibility that you may have ‘Before the Event’ (BTE) insurance as part of your home insurance policy, or other insurance policies which you may have. These insurance policies may cover your opponent’s legal costs in the event that you are not successful with your claim.

Medical Negligence Contract

A Conditional Fee Agreement, or ‘No win, No fee’, sets out the agreement between you and the solicitor instructed to pursue your claim. The Solicitor agrees that they will not charge a fee if they are not successful in pursuing your claim, subject to certain terms and conditions being meet and followed.  In return for the solicitor deferring payment of legal fees until the end of a successful claim and also taking the risk that the claim may not be successful. The solicitor may charge a success fee up to 25% of your damages, which is to be deducted from the recovered damages at the end of the claim. The success fee is negotiable. Here at Beenletdown we are one of the most competitive law firms in the area of success fees and we are open to negotiating with our clients about the level of successful fees after a careful consideration of the claim after we have conducted a risk assessment.

It is also important that the solicitor bears the responsibility to help you understand the wording of any contract that you sign instructing the Solicitor to act on your behalf. This includes a detailed costs breakdown of pursuing the initial investigations and so on. Important consideration must be given to whether the Solicitors will charge, whether they will pay for the production of any initial medical records and medical reports which will be needed in order to assess whether you have a reasonable prospect of being successful with your claim. It is therefore important that you seek out a reputable solicitor, who has a good grasp of funding issues before deciding if you wish to pursue your claim.

The funding options will be discussed with you over the telephone or in person to ensure that you are completely comfortable and that you are aware of any financial risks associated with bringing a claim. We will provide you with a Client Care letter which lays out the structure and procedure, which we are required to do by the Solicitors Regulation Authority.

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Potential Risks

The Solicitor will have to risk assess each and every individual case they accept, there are potential financial risks of taking a case to Court and the financial risks can be significant leading to thousands of pounds in costs.

Medical Negligence Risks

In the event that a case is not successful, the Claimant may be liable to cover the legal fees of the opponent. There is also the added pressure of funding the disbursements to bring your claim, such as medical reports, medical records, Court fees, Barrister’s fee, this is also discussed in the Conditional Fee Agreement. The risk assessment procedures that are put in place at the investigation stages of any claim are extremely important as we are unlikely to pursue a claim without looking at it carefully. This will also give you the peace of mind, that we are not opportunistic in accepting any medical negligence claim come across, if we did we would potentially incur thousands of pounds worth of costs for a claim which has poor prospects.

Remember not all Solicitors will offer a genuine ‘No win, No fee’ agreement, and the Solicitors firms that do offer ‘No win, No fee’ agreements, should be able to put your mind at ease when discussing it with you. You should be able to proceed with your claim and be fully aware of the costs implications as successful or unsuccessful with your claim, so that you can progress to the next step with one less thing to worry about.

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