Interim payments: The challenges we face

By Ruth Nicholson, Solicitor 

As claimant medical negligence solicitors, it is not only our responsibility to help our clients obtain compensation, it is also our responsibility to ensure our clients access rehabilitation as soon as possible.

Many of our clients have suffered injuries which they will have for the rest of their lives, and as a result need ongoing medical care and support.

Medical Negligence departments across England have always faced challenges when trying to obtain money for our clients’ ongoing needs from the NHS. The NHS are often represented by the NHS Litigation Authority (NHSLA). In our experience, the NHSLA frequently refuse to make an ‘interim payment’ of compensation to our clients, even when they have admitted the injury was their fault.

Sadly, this means that our injured clients have to wait even longer for their money. Complex medical negligence cases can go on for years, so it is vital that our clients receive money early on to begin to pay for things such as ongoing treatment, care, adapted housing and rehabilitation. Many of these clients are disabled children.

The refusal by the NHSLA to make a payment can increase legal costs because it means the client’s solicitor must apply to Court to ask a Judge to intervene and order the NHS to pay the money.

The specialist Medical Negligence team at Switalskis Solicitors has been  successful in obtaining many interim payments for our clients.

Here are two examples of cases where the NHSLA have withheld interim payments, which after costly court hearings a Judge has later ordered them to pay.

Example 1

In this case, the client is a child who was aged 13 at the time the negligence occurred. The child developed a cerebral infection which lead to numerous surgeries, long term ventilator support and gastrostomy feeding. The child suffered permanent brain damage and needed both home and hospital based rehabilitation.

The NHS was notified of the alleged negligence and made a partial admission in March 2015 and a full admission of liability in March 2016. Switalskis Solicitors requested an interim payment of only 15% of the value of the case in November 2015. This money was urgently needed to help the parents afford the ongoing treatment and care. The Defendant solicitors did not respond to the request for money for 5 months. As a result, Switalskis Solicitors applied to Court and the Judge ordered the NHSLA to pay the child £150,000.

Example 2

Our client is a child who has suffered an avoidable brain injury and was diagnosed with cerebral palsy. The NHS admitted liability in December 2012. Various interim payments were made to fund the child’s ongoing care needs and to build a suitably adapted house. However, in December 2014 the NHS refused to make any further payments. A contested hearing took place with barristers acting on both sides. The Judge ordered the NHSLA to make another interim payment of £500,000.

This money paid for the child’s speech and language therapy, neuro occupational therapy, physiotherapy, educational support, support workers and to build the adapted property. Switalskis Solicitors requested another interim payment in December 2015. The NHS asked Switalskis to wait until the end of January 2016 so that the request could be considered. The NHS did not respond until March 2016, when they refused to pay the amount requested. Switalskis applied to Court and the Judge ordered the NHS to make the requested interim payment.

Injury rehabilitation: Time for a proactive approach

The regular refusal of the NHS to make interim payments means vulnerable clients have to wait longer for their rehabilitation or to have suitable treatment. It also increases our legal costs.

To save money and improve the lives of those who have suffered medical negligence, we hope that in the future the NHS will take a proactive approach to funding rehabilitation.

Here at Switalskis Solicitors we believe in putting our clients’ needs first. To contact a member of our specialist Medical Negligence team please call: 0800 138 0458.