How is Medical Negligence Compensation Calculated
What are heads of loss?
Compensation is calculated by totalling up what are known as heads of loss.
Heads of loss are used to pinpoint different types of loss and establish how much each of these losses is worth in money.
A head of loss could be the loss of a job (and therefore salary), but it could be emotional suffering because of injury or something more unusual like missing the opportunity to compete in the Olympics.
There is no limit to the heads of loss that can be presented to the court, and they can be completely unique to your case. There are common types of heads of loss, but no standardised types that have to be accounted for. It is up to your solicitor to compile the heads of loss that they think are relevant to your situation.
Special damages cover heads of loss that are explicitly monetary
Special damages include things like:
- The cost of medical treatment
- Cost of prescriptions
- Cost of buying special medical equipment
- Loss of earnings
- Future loss of earnings
General damages cover heads of loss that are harder to put a price on, like emotional suffering
General damages include things like:
- Physical or emotional pain
- Loss of companionship
- Loss of reputation
- Loss or impairment of mental or physical capacity
General damages are often grouped under one head of loss called Pain and Suffering and Loss of Amenity (PSLA)
PSLA can be broken back down into the following parts:
- Physical pain suffered, and caused by, the negligence
- Mental and emotional suffering– anxiety, distress, embarrassment etc.
- Loss of amenity as the loss of ability to enjoy life because of injury (for example, loss of capacity to enjoy life through the senses if you lose your sight or the loss of enjoyment of an active sex life)
Compensation is rarely awarded for these aspects when considered as separate parts – instead, the absence or presence of one part could lead to an increased or decreased award.
Some examples of heads of loss:
You can seek compensation for missed opportunities both if it has caused financial loss (for example, if you had a holiday booked that you cannot go on) and for the distress that may have been caused by missing an opportunity. For example, if you are a sportsperson and were due to compete in a once-in-a-lifetime competition you may get financial compensation that recognises the emotional distress caused by missing this opportunity.
Loss of Earnings and Job Benefits Loss
Loss of earnings includes future earnings, so it can sometimes be a complicated head of loss to work out.
If you have a set amount of time off work and return to your job, it is relatively easy to work out how much compensation you should get for this head of loss. The court will simply total up the wage that you would have earned.
If you won’t be able to return to work for the foreseeable future you are entitled to compensation, in theory, for the rest of your life. The head of loss can also take into account potential career progression (so higher earnings), how much satisfaction and enjoyment you got out of your job (called congenial employment) and any reductions in pension that might have been caused by injuries from medical negligence.
Ability to do DIY, Gardening or Domestic Chores
If your ability to do household chores has been affected, you can receive compensation for this. It is calculated based on the following factors:
- Your level of expertise and how much you did around the house before the accident
- Whether the chores will be taken over by a paid service (paid cleaners, for example) or whether family and friends will pick up the duties
- How your ability to carry out these tasks would have diminished naturally with age
In many cases these kinds of heads of loss can come to as much as £1,500 a year and continue beyond retirement age.
Care & Services, Medical Expenses, Aids, Prosthetics & Equipment
Heads of loss cover all medical expenses and care that you have received up until your claim, and any on-going care that you will need. You have the right to choose private care instead of NHS care, and if you do, you receive compensation for this.
You can receive compensation for any aids or equipment that you need. Normally, expert evidence will be used to make the case for you needing certain equipment.
These are just some examples of heads of losses – there can be lots more and each set of heads of losses will be different for each case.
Who comes up with the final amount awarded?
Your solicitor will compile an estimation of the heads of loss in the “Letter of Claim” that is sent to the NHSLA.
If the NHSLA doesn’t agree with the heads of loss, the amount can then be negotiated through Alternative Dispute Resolution.
Often this course of action results in what is called a part 36 offer, which is a compromised, agreed amount of compensation.
If this can’t be agreed on, then the case goes to court and a judge will assess how much the heads of loss are worth.