Medical Negligence claim - effect on Benefits

[Stirling2005]

Hello, I have been advised to pursue a claim for medical negligence following a badly bodged hysterectomy. The hospital now want to do third operation which will effectively end any sex life and I will probably end up with colostomy/urostomy as well. Preliminary estimates suggest I should recover about £70K excluding special damages.

 

I am horrified to see that while I may get Legal Aid as I have not worked now for 2 years I will loose DLA Incap Benefit, Housing Benefit and this may impact on my husband who has epilepsy and has been off work 6 months - unable to return as a driver.

 

I really need advice on what to do please. It seems to me the Legal Aid Board, DWP, Barristers and med experts will all benefit but if I am not extremely careful I will be left worse off financially than now. My situation is bad enough - I need constant dressings and pads as this has left me incontinent and bleeding now for 2.5 years yet the NHS lot have managed not to address responsibility for helping me practically due to budget constraints/post code lottery etc. GP cannot help under BNF guidelines.

 

I am truly at my wits end but I also have to be practical - nothing can compensate me for what has happened and indeed is still going on and if I am not very careful I will be much worse off financially and the guilty go unpunished.

 

We own nothing - live in council property, no car, most law firms would not touch case as I could not afford topay disbursements if lost under no win no fee arrangement.

 

It would be great to hear what others have experienced in such cases when they have received lump sum compensation or been worse off due to rules around benefits. Many thanks

[Jan4a]

There are benefits experts on here who will correct me if I'm wrong, but i think you mean the £16,000 savings limit? if you have over that amount, then you won't get any help until it reduces to under £16,000. Then you get a percentage until you have less than £6,000, then you get full benefits again.

 

This is what happened to my parents when my dad got his pension lump sum - I think it will be same principle.

 

I know it seems unfair after all the suffering but they're only interested in how much you have and how much they estimate it costs you to live. Not where you got it or why you have it.

[Stirling2005]

Thanks for that Jan4a, what worries me most is no doubt the sniff and check mob will place all sorts of constraints on how I can spend the money (like seeking a private surgeon who could maybe help?) and an acquaintance had similar problems i.e. she had to ask permission to spend any of her money. In my case this has truly ruined a professional career, I have only been remarried 4 years after 21 years of divorce so you can probably imagine it has not helped the relationship. Even with compensation I still do not have a resolution to the problem. I am damned if the 'odd lot' are going to deprive me of what I receive now after 35 years of paying into the system. I honestly would not believe the appauling crap I have had to listen to. Heaven knows how little old ladies go on at these hospitals. I roar back at them but it leaves you ill with stress for days after. Truly evil people. Thank goodness they did not operate on my head!!

[Jan4a]

Had experience of hospitals when mum was ill. Whilst treatment was fine as far as we knew, no-one told us anything. We had no clues about what was wrong with her, aftercare or anything. We were lucky though, the same hospital broke my ex's grandma's arm whilst dressing her and didn't even notice. Her daughter noticed when she visited. They are terrible with the elderly. Know someone who works in a nursing home and if anyone has been in hosp they always have bedsores when they return. Nurses will probably say its down to staffing levels though - everything's done on targets nowadays - thanks to government.

 

Not sure if private medicine is allowed - hopefully someone like Antone or ErikaPNP will come on, they seem to know the benefit system inside out. I know my dad was warned about spending large amounts of money. He's kept receipts for anything he's bought, just in case they ever query it when his savings have gone and he has to claim again. They especially watch for large amounts of money being "given to relatives" etc.

[Stirling2005]

Many thanks for your reply. I have heard stories about bed sores and telling peoiple to soil the bed. While in hospital for the first operation (hysterectomy) the place was filthy. Bins overflowing with used dressings, the bathroom floor was slimy. The toilets and wash basins were held together with 'Gaffer' tape and the glaze was cracked and black lines all over. The pain relief was non-existent, I was glad to get out on day 3 and the problems set in on day 4. Part of my cervix was left behind (confirmed on scan at 7 days post op) this necrotized and fell out at 6 months causing fallopian tube prolapse. I have had 2nd surgery to close an internal hole 6 x 2 but it reopened immediately. I no longer believe a word any of the staff say as it is obvious from their body language they are guarded and uncomfortable. My GP is against pelvic exenteration as huge infection risk and so on. Truly a damned nightmare. I am afraid to claim compensation because in reality I am unlikely to be able to return to work due to constant wetness soreness and smell from various substances which builds up if I have not got washing facilities every 2 hours or so. I would therefore be expected to support me and hubby from proceeds which would stop me from seeking private help as I could not afford it. I have no wish to be 'enriched' by any compensation but as it is I would be worse off and still have the problem and no way of dealing with it all. There is no justice unless you can afford it. Best of it all is I had got to the top of my profession, gotthe son through uni etc set him up, which skinted me and then this happened right when I could least afford it. This is why I am sooo reluctant to act on legal case because I stand to loose more than gain. The irony of it all is that technically my husband would be effectively living off earnings/income which derived under different circumstances would render him open to a charge of living off immoral earnings!!

[MIKEY DABODEE]

What benefits are you on, if you are on Income Support as well and you receive compensation for an injury and have that compensation set up as a trust fund. usually any money you receive will not effect your Income Support and the capital rule of 16k does not apply in these circumstances.

 

I didnt think capital effects DLA or IB in this case, I didnt think capital effects these benefits at all, but sometimes a recovary can be made before the compensation is paid but this is done before you receive the money

 

You need to have a chat with CAB make an appointment you deserve all that money its to help your future life not stop the benefits that you are on now

 

good luck

Edited September 27, 2009 by MIKEY DABODEE

[installspark]

There are benefits experts on here who will correct me if I'm wrong, but i think you mean the £16,000 savings limit? if you have over that amount, then you won't get any help until it reduces to under £16,000. Then you get a percentage until you have less than £6,000, then you get full benefits again.

 

For all income based benefits that is correct, capital and savings held between £6000 and £16000 will result in a reduction of benefit of £1 for every £250 (£500 for ESA) held above £6000. Any capital and savings held above £16000 will zero any income based benefit payable.

 

Certain types of capital can be disregarded for a period of up 104 weeks with some disregarded indefinitely; one of these being payment for personal injury. However to be disregarded indefinitely this payment must be held on trust and any payment made from the trust is treated as income from capital. The income from capital in itself will also be disregarded.

 

Payment for personal injury

The law

 

29414 The value of

1. a payment made because of a personal injury if held on trust and

2. the right to receive payment from the trust

are disregarded indefinitely where the payment is made as a result of an injury to

either the claimant or partner1. For example, the value of a payment made by the

Criminal Injuries Compensation Authority is disregarded if held on trust and so is the

value of the right to receive payment from the trust. A trust exists if there is a

separation of legal ownership and beneficial ownership of the payment. The

disregard can apply even if there is no written trust document.

Note 1: Payments of income from the trust are income from capital and are taken

into account as income and not capital. (See DMG Chapter 28 for how to treat such

payments).

Note 2: This disregard does not apply if the injury was to a claimant’s deceased

partner2.

Note 3: A payment made in relation to the costs of care associated with an

unwanted child in a “wrongful birth” case is a payment made because of a personal

injury, for instance in the case of a failed sterilisation or vasectomy.

1 JSA Regs, Sch 8, para 17; IS (Gen) Regs, Sch 10, para 12; 2 R(IS) 3/03

 

Income from certain disregarded capital

 

28124 Generally income from capital is not treated as income but as capital and goes

towards increasing the amount of a claimant’s capital. DMs should, however, take

into account, subject to any appropriate income disregards, income derived from the

following types of capital for as long as the value of the capital is disregarded1

1. trusts set up from money paid because of a personal injury while disregarded

(see DMG 28496, 28513, and DMG Chapter 29)

2. assets of a business partly or wholly owned by the claimant while disregarded

(see DMG Chapter 29)

3. the dwelling occupied as the home while disregarded - (see DMG Chapter 29)

(but not income from boarders or sub-lets which is partially disregarded).

1 JSA Regs, Sch 7, para 23; IS (Gen) Regs, Sch 9, para 22

Disregard for relevant payments

 

28513 Fully disregard1 any relevant payment unless one of the exceptions at DMG 28514 -28515 apply.

 

1 JSA Regs, Sch 7, para 15(1); IS (Gen) Regs, Sch 9, para 15(1)

Relevant payments that should be taken fully into account

 

28514 The disregard in DMG 28513 does not apply to

1. a person affected by a TD1 or

2. LRPs and child maintenance2 or

3. maintenance, that is not an LRP or child maintenance, for

3.1 a member of the family or

3.2 a former partner or

3.3 the children

of the person making the payment3 or

4. a student's covenant or grant income4 or

5. in JSA cases only, any payment made to a member of the family because

another member of the family is involved in a TD5 or

6. in IS cases only, to a person entitled to IS during

6.1 a TD or

6.2 the first 15 days after returning to work after a TD6.

Note: JSA can not be paid to claimants involved in a TD. Special rules apply if a

member of the family of a JSA claimant is involved in a TD.

1 JSA Regs, Sch 7, para 15(3)(b)(i); IS (Gen) Regs, Sch 9, para 15(3)(b); 2 JSA Regs, reg 89 & 90;

IS (Gen) Regs, reg 25 & 25A; 3 JSA Regs, Sch 7, para 15(3)(a); IS (Gen) Regs, Sch 9, para 15(3)(a);

4 JSA Regs, reg 134; IS (Gen) Regs, reg 65; 5 JSA Regs, Sch 7, para 15(3)(b)(ii);

6 IS (Gen) Regs, Sch 9, para 15(3)(b)

 

Nor would using any personal injury payment to pay for further medical care be classed as deprivation of capital.

 

29806 People are not treated as having capital of which they have deprived themselves if

1. the capital is a payment made because of a personal injury to them (including

payments from the Children’s Memorial Trust - see DMG 29418 ) and

2. the payment is held on trust for their benefit1.

They are also not treated as having the amount by which notional capital is reduced

under the diminishing notional capital rule2.

1 JSA Regs, reg 113(1)(a); IS (Gen) Regs, reg 51(1)(a); 2 JSA Regs, reg 113(1)(b) & 114; IS (Gen) Regs,

reg 51(1)(B) 51A

[Stirling2005]

Thank you all for your help. Thankfully i have the benefit of time to study this information. I am on a steep learning curve. The GP referred me to the local incontinence service 18 mths ago where I expected to be shown a range of what is on the market, given say one of each to try and info on where to get from/how much etc. Oh no. I was rudely told by a truly nasty woman that she did not have pads. It had taken 2 buses to get there and both substances were clearly leaking out. The clinic was at a GP surgery so I do not accept there were no pads. If I had not reused the one I had travelled in I would have offended public decency going home.I was given a paper towel to take away with the name of a charity in Manchester 'Promocon' I rang them, was kept on the phone for 58 minutes explaining my situation. They sent glossy trade brochures marked at products they thought would help. I was then expected to ring these firms, which I did but was disheartened by having to describe the most intimate of bodily malfunctions to non medical young staff, begging samples to try. All that ever arrived was 2 Boots cottons pads which were useless. Once I had established what I wanted to buy Promocon were going to negotiate a 10% discount!!. Now I think this amounts to the NHS and a charity promoting private industry. Needless to say I got nowhere hence my call for advice.

 

I have been to see the MP who offers to pass the matter to local PCT who have let me down all the way through. I cannot see how his intervention will in reality assist although I do desperately need to see a professional advisor to learn how to better manage the situation.

 

Even the odd lot no longer want sick notes, for the last 2 years since they sent a bod to see me they just send an annual questionaire to me. This is all truly like something from Franz Kafka - not UK Britain in 2009. As I mentioned before, goodness knows how little old ladies go on with these despots.

[Jan4a]

At least the benefit side of things doesn't look as bad now thanks to Installspark.

 

Have you tried netdoctor forums for the medical problems? I think it is quite good, someone else on there might have had problems similar to yours and they have some nurses that help.

[Stirling2005]

Hi there, yes indeed, I shall have to look into all of this information. One good bit of news is I received a private e-mail and have managed to identify a type of dressing which will assist in the management. This lady is a nurse and I thank her from the bottom of my heart. I have been trying to get the name of this stuff for over 2 years.

 

I have tried the net doctor thanks. Unfortunately if I agree to any more surgery (pelvic exenteration) I will be worse off than now. I have already had a number of abdominal ops which has caused much scarring and adhesions. (its a good job that on the day we leave school to join the real world we do not know what is ahead of us?) I have been very fortunate though in that I have not had many minor illnesses which lay some folk up. I do voluntary work and represent the local council tenants on various committees etc. I absolutely refuse to watch day time tv........ truly depressing. Again, many thanks to everyone.