Am I too late to claim compensation for contaminated blood?

There are time limits which apply to most legal claims.  This is the time limit for actually commencing legal proceedings in the courts, not just consulting a lawyer. For personal injury claims, the general time limit is three years from the date you were injured.  However there are some important exceptions to this rule and it can sometimes be a complex matter to determine at what point the ‘clock’ started to run. The time limit that applies to your claim will depend on your own individual circumstances and, for this reason, it is important that you seek legal advice without delay if you think you might be interested in bringing a contaminated blood compensation claim.

In most cases, more than three years will have passed since each individual contracted Hepatitis C virus. In addition to the exceptions mentioned above, the courts have wide powers to allow a claim to proceed even if the time limit has expired. When considering whether or not to do so, the court will carry out a complex balancing exercise where they will consider the interests of the claimant and defendant and decide whether it is in the interests of justice to allow the claim to proceed.

What will the claim cost?

There are a number of ways in which your case can be funded. Your solicitor will explain each of these to you in detail, confirm which options are available to you and discuss the best way for you to fund your claim.  We anticipate that the majority of claims will be funded by Conditional Fee Agreements (which are explained below).

Conditional Fee Agreement

We act for most of our clients under a Conditional Fee Agreement (CFA) also known as a ‘No Win No Fee’ agreement. Just as the name suggests, if your case is unsuccessful then you don’t have to pay us (except in very specific circumstances that your solicitor will discuss with you). If your case is successful then the majority of your legal costs will be paid by your opponent but we are also allowed to take up to 25% of the compensation you receive in certain situations, such as where there is a shortfall in the amount of costs we are able to recover from the government. Your solicitor will explain exactly how this works in more detail before you are required to sign the agreement.

Our ability to offer a CFA depends on a number of factors which will relate to your individual circumstances. We cannot, therefore, guarantee we will be able to offer you a CFA before we have been able to carry out a preliminary assessment of your case (you will not be charged for this assessment).

Legal Expenses Insurance 

You may be able to fund your case by using a policy of legal expenses insurance that you might have on your home contents policy or other insurance policy.  We can assist you in contacting your insurer to arrange use of this policy.

Other options

Legal Aid is unfortunately no longer available for claims such as yours. The final option would be for you to pay our fees as a private client. That would likely require you to have significant savings and is unlikely to be a realistic option for the vast majority of our clients.

What damages will I recover?

You will be entitled to two kinds of damages for your injury. The first type is called General Damages, and these are awarded for what the courts call, “pain, suffering and loss of amenity“. The second type is called Special Damages and these would cover any actual financial losses and expenses that have been caused by your infection (or that of a loved one) with Hepatitis C. Special Damages can include lost earnings, the costs of caring for an infected or affected individual, treatment costs and many other things.

In the United Kingdom, the amounts of compensation that can be recovered for General Damages are relatively modest. The figures awarded are fixed by judges on a tariff basis, by comparison with similar types of claim and are generally low, even for very serious injuries. Large compensation claims (particularly those that you might have seen reported in the Press) often involve complex Special Damage claims for losses that are calculated to extend many years into the future.

Each claim is unique, and the amount of compensation you will receive if your claim is successful will depend on your own circumstances. However, any successful claim will involve you receiving compensation for your own losses.

What is involved in this claim?

First, we have to investigate your individual case, and the extent to which your situation fits within the legal arguments we intend to make. In order to do this we will ask you to complete a questionnaire and provide us with information about your experiences. We may be able to take on your case based mainly on the information you provide us within your questionnaire, or we may need to obtain your medical records before a final decision can be made. Each case is assessed on a case by case basis.

If we decide to investigate further we will request your medical records and obtain an independent medical report prepared by an expert. The issues that the expert deals with will depend on the circumstances of each case but will broadly focus on whether it can be proven that a contaminated blood transfusion was provided (if this cannot be confirmed from the medical records), and the extent to which the transfusion could have been avoided if the risks of it being contaminated with Hep C had been properly taken into account.

We have already written a Letter of Claim to the Secretary of State for Health & Social Care and NHS Resolution on behalf of our existing clients, and the potential defendants are currently considering the arguments we have raised. We have stressed that it will be strongly in our clients favour for them to agree to resolve the claims without the need to go to court. If they decide, to fight the claims, it will likely be necessary to commence proceedings. If the claim is fought all the way, the litigation will broadly involve the claimants and defendants exchanging summaries of their legal arguments, witness statements and expert evidence. Ultimately, the matter would then proceed to trial.

What we need to prove?

What we need to prove will depend on how exactly our clients’ claims are presented. Whilst we have now sent a formal Letter of Claim, we still have the right to reformulate the claims (and potentially even the defendants they are brought against) as we continue to investigate matters.

At present, we expect that we will broadly argue that the Government and/or the NHS negligently provided you with contaminated blood and/or failed to give you all of the information you needed in order to provide fully informed consent to receive the blood transfusion which resulted in your contracting Hepatitis C.

As you would expect, we will also need to rule out any other causes for you having contracted Hepatitis C.

Finally, we will need to prove what losses you have suffered as a result of contracting Hepatitis C. A claimant’s losses are usually proved on the basis of expert medical evidence, their medical records and witness statements. Special Damages will require investigation and case-specific evidence to be assembled. For example, lost earnings claims will likely require payslips and evidence of time off work to be provided in support of the claim.

My records have been destroyed does that mean I cannot bring a claim?

How long will it take?

This is a very difficult question to answer because it depends on so many factors. Over and above almost anything else, the length of time your case takes will depend on how far the defendants decide to fight the claims. They could decide to try and settle the claims right at the outset, or they could make us go all the way to trial. They might decide to settle somewhere between the two.

Each claim will vary in terms of its complexity. Some may be relatively straightforward, in that the losses being claimed are virtually limited to General Damages only. Others may involve a wide range of complex Special Damages, with predictions made about the future. Some claims may require expert evidence in a number of different areas, and it is sometimes necessary to obtain the assistance of a forensic accountant to value particularly complex financial losses.

In addition, each individual claim will be advanced under the general arguments (some of which are set out above) which apply to everyone. Many complex issues of medicine, science and history are involved, and if the matter is fought all the way to trial we will likely require expert reports in a number of different areas. We would expect to receive significant volumes of disclosed documents from the defendants as part of the litigation, and that would need to be carefully reviewed. All of this would be against the backdrop of the ongoing work of the Infected Blood Inquiry (which is estimated to run over several years), and the information which comes out of the Inquiry may have particular relevance to these claims.

Under the general court timetable most cases get to trial within 12-15 months of issue – some sooner, some later. However, in a complex group claim (such as this) that timetable frequently needs to be extended.

For all of the reasons above, you should assume that it will likely take several years to conclude your claim. If the defendants decide to settle the claims at an early stage matters may move more quickly, but there is no guarantee of this. The key thing for you to bear in mind is that we will at all times work as quickly as possible for you, and will keep you up to date with our progress.

Will I have to go to court?

Few cases actually get as far as trial, and in group claims it is often unnecessary for every claimant to give evidence at trial as ‘lead cases’ are often selected to stand as representatives for the group.  However, there is always a chance that you will have to go to court once you decide to commence litigation. We will guide you through the process if this does become necessary, and there are a number of things that can be done to help you feel more comfortable should you have to go to court.

Will I be able to keep my identity secret during this process?

We are aware that some individuals with Hep C particularly value their privacy and that the Infected Blood Inquiry is exploring ways in which they might be able to give evidence to the inquiry confidentially. It is similarly possible (although not guaranteed) in litigation to obtain the court’s permission for a claimant or witness to give evidence anonymously. If that is something you would like to explore, we can provide you with further advice in due course.

As you would expect, we will extremely careful to avoid taking any steps that might result in any unintended/inadvertent release of your private and/or sensitive information.

Obtaining your health records?

We will likely require a full set of your medical records in order to progress your claim. In some instances we will require you to access your medical records prior to making a decision as to whether we can take you on as a client. It may be that we only require some key documents that you already have at home as many individuals already had to collate this information for applications to the Skipton Fund / EIBSS.

If you do not have the required documents already, or if we (for example) need to review your GP records entirely, patients generally have the right to have copies of their medical records. The law concerning this is contained mainly in The General Data Protection Regulation and the Data Protection Act 2018, as well as the Access to Health Records Act 1990.

Applying for a copy of your records is usually very simple. You just have to write to the record holder, GP and/or hospital, asking them to provide you with copies of the records they hold relating to you.

When applying to your GP or a private doctor you should address the letter to the doctor him/herself. When writing to a hospital where you received treatment you should address the letter to their Medical Records Department. The letter should make clear your full name, address and date of birth so that the record holder can easily identify you. If you know your hospital number you should quote this too.  We can talk you through this process.

Following a change in the law in May 2018, the record holder can no longer charge a fee for supplying you with copies of your own medical records. The record holder should supply you with copies of the records within 1 month of the request being made, although some exceptions so exist and it is best to contact the record holder directly if you have any concerns.

When you are applying for records on behalf of a deceased relative or loved one the process is as outlined above. However, record holders can charge a reasonable fee for these requests and they usually have 40 days to provide the requested records.

There are only limited circumstances in which a record holder can refuse to provide you with copies. One situation is when the doctor/hospital fears that the contents of the notes may have an adverse effect on your health. They can also refuse if the records identify someone else or providing the copies involves disproportionate effort.  Both of these exclusions only apply in unusual situations. If the record holder refuses to supply you with copies without good reason then you can apply to Court for an Order for them to do so.

If you have any questions or concerns in regards to making a medical record request, please contact a member of our team who can assist you.

My records have been destroyed does that mean I cannot bring a contaminated blood compensation claim?

Unfortunately due to Hospital Trust’s policies some records are destroyed after eight years where, for example, you no longer attend that hospital. However it should be noted that when you attend hospitals, either by referral or in an emergency, hospitals inform your GP of your attendance and any follow ups that may be required and so on. While it may be the case that your records have been destroyed by the hospital which administered the blood transfusion, correspondence confirming your treatment may have been sent your GP and may be contained in your GP records.

If you are told that required records are not available anymore please let us know and we will consider whether it is still possible to prove your claim by alternative means.

What happens if your loved one has died – can you still bring a contaminated blood compensation claim?

Yes. When a loved one has died a claim can still be brought on behalf of their estate. We understand that families are often close and work together, and we are happy to take initial enquiries from any close family member.

However, once we start to investigate the claim and at the point we accept formal instructions to act, these will need to come from the individual who has the legal right to take steps on behalf of the relative’s estate – this is known as the Personal Representative. They are often, but not always, the next of kin.

Where your loved one made a will, the Personal Representative will likely be the executor(s) of the estate named in the will. In order to administer the estate, the executor(s) needs to apply for probate and will receive a ‘Grant of Probate’ once this process has been completed. If no will was made, an appropriate person (usually next of kin) can still apply to be an ‘administrator’ of the Estate, but will instead receive ‘Letters of Administration’ once this has been approved. You may have already obtained a Grant of Probate / Letters of Administration for some other reason connected with the estate, but if you have not done so you will need to do this at an early stage. We will provide you with further information if this is relevant to you.

In the meantime, if have any questions regarding whether you hold the legal authority to bring a claim on behalf of your loved ones estate, we recommend you contact your local probate registry. Further information can be found here https://www.gov.uk/wills-probate-inheritance.

Please do not be concerned about the information provided above – we will talk you through the necessary steps at the relevant time.

Will I lose access to the discretionary funds available as a result of bringing a contaminated blood compensation claim?

There is no legitimate reason why your payments from the Skipton Fund (or other discretionary fund) would stop as a result of our investigation/bringing a claim.  We will not advise you to accept any financial settlement that would leave you in a worse position than your discretionary fund payments.

The differences between the negligence action and the public inquiry?

Public inquiries are set up by the Government to investigate events which have or could cause public concern. The focus of an inquiry is first to determine exactly what happened, and then to work out what must be done to prevent it from happening again.

The Infected Blood Public Inquiry was announced on 10 May 2017 and the preliminary hearings began on the 24 September 2018. Sir Brian Langstaff is leading the Inquiry and will deliver a written report, first to the Government, and later published to the public. He will set out his findings and generally make recommendations to improve the quality of government or management of public organisations in the future.

Generally, a public inquiry cannot apportion blame or find any particular person or body responsible for what has occurred. They can only make recommendations based on the evidence that they have found. This means that the Inquiry cannot bring criminal charges or demand compensation as a result of its findings which is why a separate claim in negligence is necessary to ensure victims are properly compensated for the harm that has been caused.

While the Inquiry may assist this group negligence claim, by bringing information to light that supports our arguments, the Inquiry itself cannot order that compensation is paid to those affected by infected blood.

 


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If you would like to enquire about making a claim, please click here, call our team on 020 7650 1089, or email us at cb@leighday.co.uk.

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Our clients have been campaigning for many years for answers to their questions, the most burning question being how could contaminated blood have been given to so many NHS patients? We are taking steps to ensure that the surviving victims, and their families, are able to move forward with their lives

Leigh Day is a leading law firm with a track record of taking on governments, businesses and powerful institutions on behalf of individuals. We believe everyone should have access to justice.