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How to Prove Care Home Negligence

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Do you suspect negligence at a care home? Find out how to gather evidence

Choosing a care home is extremely difficult and especially as you are usually making the decision for someone else. You want a high standard of care and support but if this doesn’t happen, it’s really anxiety provoking and stressful. After all, the care home is ‘home’ and the residents are always vulnerable.

Independent Age has produced an interactive map showing care home performance across England in 2019.

You can look at the quality of care homes in your area and see how it rates in relation to other areas.

Whilst a lot of care homes perform well, not all do, and some are rated by the Care Quality Commission as requiring improvement or inadequate.

What is care home negligence?

Negligence in a care home is where a resident is being mistreated or neglected and often results in an injury or illness.

Any form of care home negligence is unacceptable and should be addressed as soon as possible.

How do I prove care home negligence?

If you want to prove negligence you need to be prepared to take action in the civil court.

Proving negligence is not the same as complaining which is covered here.

What’s the difference between residential care homes and nursing homes?

Residential Care Homes

These kinds of homes vary in size from small homes with a few bedrooms to large scale operations offering care and support throughout the whole day. Staff help residents with washing, dressing and with using the bathroom if necessary.

Nursing Homes

These offer the same type of care as residential homes but with additional round the clock medical care from a qualified nurse.

What is care home negligence?

Care home negligence is usually:

  • Neglect of basic needs, for example;
    ○ Inadequate provision of food or drinks leading to malnutrition or dehydration.
  • Neglect of personal hygiene, for example;
    ○  Inadequate help with or lack of regular bathing, washing and cleaning;
    ○  Not regularly providing clean bedding and clothing.
  • Neglect of social and/or emotional needs, for example;
    ○ Absence of conversation or other stimulation;
    ○ A frightening or chaotic atmosphere.
  • Medical neglect, for example;
    ○ Preventing or failing to treat pressure sores or pressure ulcers;
    ○ Inadequate lifting aids, which can cause injury and harm;
    ○ Incorrect/failure to provide medication or medical care when required;
    ○ Preventing falls, which can cause a fracture or injury to the head and back.

Warning signs

If any of these things are happening, start immediately to keep written records, which include who, what, when, where and with what result. Keep photos, screenshots and recordings, if you can, to support what you’re saying. Make the notes detailed and clear and make sure you record everything including repeat events:

  • A strong smell of urine can be an indication of the basic needs of personal hygiene not being met;
  • Recurrent urinary tract infections. There is a connection between lack of fluids (dehydration) and recurring urinary tract infections. Carers should ensure enough liquids are being drunk and make them readily available to residents;
  • Bed or pressure sores and loss of weight;
  • Wandering away from the home indicates a lack of security at entrance and exit points.
  • Accidents are possible in even the best run care homes but if they occur as a result of slippery floors, poor lighting or unsafe furniture then that’s a concern. The same applies to accidents caused by carelessness or poor training of the care home staff.
  • Unexplained injuries. The sudden appearance of bruising, cuts, grazes, which look unlikely to be the result of a fall or an accident, especially if you’re not told about them, are warning signs of physical abuse. Be particularly alert to finger bruises on arms, flinching when a particular member of staff appears or bloody clothing.
  • Changes in behaviour, such as becoming withdrawn, may be a reason to be alerted to a problem like emotional abuse, verbal abuse, humiliation or threats. Often vulnerable people don’t like to complain for fear of bad treatment or upsetting those seen to be charge.
  • Medication regime. Certain medicines need to be taken at the same time each day. Check the medical charts/records to show this is adhered to. If this isn’t happening take a photo of the chart. The same applies to making sure medication is being dispensed. These are serious issues which could lead to an overdose or failure to receive the appropriate medication.
  • Not being taken seriously, if you complain. This can include such things as being told lies, being fobbed off or promises to put something right not happening. In these instances always record who you complained to, when, what you complained about, what evidence you produced and what replies you got. Keep this in writing too as conversations are much more difficult to prove and can be disputed.

Who can I take action against?

In many instances you will take action against the care home. However, in cases where a resident has been placed in the home by a Local Authority, they may also be liable.

If a resident is funding the care home place privately there may be additional contractual obligations with which the care home must comply, so the resident may be entitled to claim damages not only in relation to the negligence, but also for breach of contract.

How to make a successful claim?

For your claim to be successful you will have to satisfy two tests:

  1. The care received fell below the standard that one was reasonably entitled to expect (the ‘Bolam Test’).  In other words, the care provider treated you in a way which fell below what a ‘reasonable body of opinion’ would expect of them in those circumstances at that time.
  2. There must be a causal link which shows that, as a result of the negligence, the claimant has suffered loss.

Even if negligence can be proved it is often the case that the outcome, for example being injured in a fall, would have been the same without it. In these circumstances  there would be no loss and no successful claim. This is an area of developing law. The Court has now held that a material contribution towards the loss can be sufficient to enable the Court to order compensation. In order to prove material contribution, the failure or breach of duty need not be the sole cause of the injury but it must have materially contributed to it. In simple terms a claim will be successful if the defendant materially increased the risk of harm. Where there are a number of possible causes of the injury, the claimant must still prove the defendant’s breach of duty materially contributed to the injury. It may be sufficient for the claimant to show that the defendant’s breach of duty made the risk of injury more probable. It is not necessary to show certainty.

The evidential test is on ‘the balance of probability’, meaning that the court must conclude that there was at least a 51% chance that the treating healthcare provider caused the damage or loss.

This is a complicated area of law and this is why it is vitally important to use a solicitor if you can. Don’t try to do this alone as you could well fail.

How do I fund my negligence claim?

There are various methods of funding a clinical negligence claim as follows:

  1. Paying from your own funds
    The cost of the solicitor’s fees will include all of the disbursements they have to make such as barristers fees, court fees, medical report fees etc. Many potential Claimants do not have enough money.
  2. Conditional fee agreement
    Commonly known as the no-win, no-fee agreement. It is a popular way to fund a claim, providing access to justice to many who cannot afford to pay themselves.A conditional fee agreement means that the solicitor will not charge their basic fees for dealing with the matter on your behalf unless the claim is successful. If it is, the solicitor recovers their ‘base costs’ from the losing party. In addition to their base costs, the Solicitor will apply a success fee. A usual success fee is no more than 25% and this is a fee which is negotiable with your solicitor and takes into account the litigation risk of your case and its complexity. This  success fee element of your fees is not recoverable from any losing party which means that if you win the success fee would be deducted from your damages. For example if you receive £4,000 in compensation and the Solicitor agreed a 25% success fee the Solicitor will deduct £1,000 from your damages and you would be left with £3000. The agreement usually includes insurance against losing so that you do not lose money.
  3. Damages Based Agreement
    This operates very much like a Conditional Fee Agreement but is simpler in that the solicitor takes a percentage of the compensation that is recovered from the defendant.
  4. Before the event insurance
    Many people take out household and content insurance without realising there is a legal expense element attached. Before the event insurance would pay a solicitor to pursue a clinical negligence claim on your behalf.Legal expenses insurance may also be attached to car insurance, breakdown cover, credit card insurance and some bank accounts.Ordinarily, such a policy of insurance would require the use of solicitors appointed by your insurance company but if you want to instruct your own solicitors they can probably get the policy assigned to them.Sometimes a combination of before the event insurance and a Conditional Fee Agreement are used so as to avoid you paying the success fee or indeed it can be used to reduce the success fee that you are to pay. This is something that your solicitor can discuss with you.
  5. After the event insurance
    Following the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO 2012”), something called “qualified one way costs shifting” has come into operation so that in the event that your claim is unsuccessful you won’t have to pay the defendant’s costs if you lose. There are certain circumstances when this protection can be lost but ask to discuss this with your solicitor. The general principle is that the losing party pays the winning party’s costs apart from the success fee.If you lose the protection of qualified one way costs shifting, and your claim is unsuccessful, then you could still be forced to pay the disbursements of your case and/or the defendant’s costs which can be substantial.The easiest way to protect yourself against such eventuality is to take out a policy of after the event insurance. Such a policy can be costly though, because the risk giving rise to a potential claim on the policy has already occurred. In other words it is a policy taken out after the decision made to pursue a claim.Again, this area of law is complex and changing so get advice.

Helping your solicitors understand your case and giving them the evidence to prove it

During the course of the initial meeting with your solicitors, they will discuss the concerns that you have, the treatment and care that was provided and any losses that have been suffered as a result. It’s at this stage or beforehand so they can read through it all, you should share all your records. This should help the solicitors to grasp the issues quickly and advise you on whether your case is a reasonable one to pursue. They will assess how good the evidence is.

It is also a common procedure for the solicitors to prepare a chronology (a record of events over time), which accompanies the medical records setting out the key entries in the medical records. This may assist any expert instructed in your case in identifying treatment that was provided which was negligent. Your own records might be helpful too and might be put into a chronology for the expert.

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