Clinical negligence involves a healthcare professional’s failure to provide the standard of care expected, resulting in harm to a patient. Once the investigations into liability have been completed, it is necessary to consider the compensation (also known as ‘damages’) that a Claimant may recover if successful.
There are two types of damages that can be awarded: general damages and special damages. These categories help quantify the harm and loss experienced by the patient, ensuring they receive appropriate compensation.
General damages
Types of general damages
General damages cover the non-monetary aspects of the harm suffered, focusing on the intangible effects of the negligence. This type of damage is inherently subjective and can vary significantly from case to case. Key components include:
1. Pain and suffering: This refers to the physical pain, suffering, and distress experienced by the patient due to the negligence. It considers the severity and duration of the pain and suffering endured. More serious and long standing injuries will be awarded with higher awards for pain and suffering.
2. Loss of amenity: This compensates for the loss of enjoyment of life. For instance, if a Claimant’s ability to engage in hobbies, sports, or everyday activities is impaired, they can seek compensation for this loss.
3. Psychological impact: Negligence can lead to psychological issues such as depression, anxiety, or PTSD. General damages account for the emotional and mental toll on the Claimant.
Calculating general damages:
Assessing general damages involves reviewing past cases with similar injuries and outcomes. Guidance produced by the Judicial College (JC Guidelines) provides a range of awards for certain types of injury and this guidance is usually referred to as well. Evaluating general damages is not a scientific process as, particularly in clinical negligence claims, no two injuries are entirely the same. Medical reports and factual information including witness statements that outline the specifics of the Claimant’s condition are obtained in order to determine an appropriate award of damages.
Special damages
Types of special damages
Special damages, on the other hand, are more straightforward as they cover quantifiable financial losses incurred due to negligence. These damages are unique to each case and can include:
1. Medical expenses: Costs for additional medical treatment, rehabilitation, and any necessary surgeries resulting from and occasioned by the negligence are covered under special damages. It also includes any therapeutic interventions such as physiotherapy, hydrotherapy, psychotherapy and so forth.
2. Loss of earnings: If the Claimant is unable to work or has to take time off, lost income and potential future earnings are compensated. This includes any impact on career progression and pension benefits.
3. Travel expenses: Costs associated with traveling to and from medical appointments, treatments, or therapies are included.
4. Care and assistance: If the Claimant requires assistance at home, either from a professional caregiver or a family member, the commercial cost of this care can be claimed. This aspect of the award can also cover adaptions and modifications needed at home or whilst driving, to accommodate the Claimant’s new needs.
5. Other financial losses: This broad category can include anything from the cost of medical equipment to expenses for retraining if the patient needs to change careers due to their injury. Any expenses that would not otherwise have been incurred, can be claimed from the Defendant. This could also include the cost of replacing soiled clothing, bedding or other specific items purchased.
Calculating Special Damages:
Special damages require meticulous record-keeping and documentation. Receipts, invoices, payslips, and other financial documents are essential to substantiate the claim. Expert financial advice may be sought to project future losses, especially when considering long-term impacts on the patient’s earning capacity and pensions.
Importance of legal representation
Navigating a clinical negligence claim is complex and requires specialised legal expertise. A solicitor experienced in clinical negligence claims will assess and ensure all aspects of the damages are thoroughly explored and accurately presented. They will also gather the necessary medical and financial evidence and then draft up a schedule of loss. Most claims settle out of Court and a specialised solicitor will negotiate a settlement either directly with the Defendant or by one of the forms of dispute resolution such as mediation or a round table meeting with the opponent. If it is not possible to achieve a settlement, the solicitor will advise in relation to commencing formal Court proceedings.
Comment
Understanding general and special damages is fundamental in a clinical negligence claim. While general damages address the subjective and emotional aspects of harm, special damages focus on the more specific financial impacts. Both are crucial in ensuring the Claimant receives appropriate compensation for the suffering and losses they incur due to clinical negligence. With the right legal support, Claimants are assisted in navigating the complexities of their claims and work towards securing the justice and financial support they need to rebuild their lives.
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Carolle White is a Legal Director and Chartered Legal Executive in our expert Medical Negligence team, which is ranked in Tier One by the independently researched publication, The Legal 500, and Commended in The Times Best Law Firms 2024. Carolle specialises in high-value and complex medical negligence cases and inquests.
If you require any advice in relation to the subjects discussed in this article, please do not hesitate to contact Carolle or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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