The Clinical Negligence Scheme for Trusts (CNST) that we administer provides an indemnity to members and their employees in respect of clinical negligence claims arising from events which occurred on or after 1st April 1995. It is funded by contributions paid by member trusts and is often equated to an in-house mutual insurer.
The CNST relates to incidents occurring in the context of NHS trust employment, and clinicians’ own medical defence organisations (MDOs) continue to provide an indemnity in respect of private practice and independent GP and dental practice.
In all cases, major or minor, it will be alleged that clinicians have failed to work to a suitably professional standard (the Bolam/Bolitho test) and that, in consequence, the patient has suffered injury and/or loss.
What does the patient need to prove?
- that the treatment fell below a minimum standard of competence; and
- that the patient has suffered an injury; and
- that it is more likely than not that the injury could have been avoided, or less severe, with proper treatment
- what is the time limit for making a claim?
The basic rule is three years from the date of the injury but it can longer if:
- the patient is a child, when the three year period only begins on the patients 18th birthday
- the patient has a mental disorder within the meaning of the Mental Health Act 1983 so as to be incapable of managing their own affairs, when the three year period is suspended
- there was an interval before the patient realised or could reasonably have found out that they had suffered a significant injury possibly related to their treatment
- a court is persuaded that it is fair to overall to allow a longer period
- how are damages calculated?
There are two elements to an award. The first recognizes the “pain, suffering and loss of amenity” caused by the injury. It varies from about £7,000 for an unnecessary laparotomy scar through to about £217,000 for blindness to about £327,000 for quadriplegia. The remainder of any award is wholly related to the financial losses and extra expenses caused by the injury.
What is my role?
Your role is crucial. Unless we have your views and know what you would say at trial about all the relevant factual issues we cannot accurately work out the chances of the claim succeeding. That would increase the risk of paying too much to settle the claim or going to trial and losing.
We need to know:
- what you did
- the reasoning behind any decision you made
- what your notes say
- in some claims we may also need you to think though what you would have done in a hypothetical situation. Remember that what you think goes without saying may well not be the same for someone outside your field. You will need to explain things that may even seem ‘obvious’.
Why does it take so long?
Lawyers are very conscious that the time taken to resolve claims must seem particularly odd to clinicians who have to deal with major problems in minutes or hours. The reasons for the time taken can include:
- the need for the prognosis to stabilise before an accurate valuation can be made. This can take years where the claim is on behalf of a young child with a brain injury
- other calls on the time of medical experts. There are frequently issues which cannot be resolved without both parties having had an independent expert advice and it is not unusual for
- respected experts to have an eight-twelve month waiting list
- it may also take time before a trial date can be allocated
- how many claims go to trial?
Very few. Most claims are either settled by negotiation or mediation for whatever proportion of their full value matches the chances of success of trial.
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