Nursing Home Abuse is On the Rise

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Elder abuse is a heart wrenching issue—one that is unfortunately on the rise, even in our watchdog of a modern society.  Statistics have shown that nearly 5 million elders suffer from abuse each year with one study reporting 24% of nursing home residents experiencing at least one instance of physical abuse.  According to the Center for Disease Control and Prevention (CDC), “elder abuse is a significant public health problem” and 1 out of every 10 people age 60 and older experiences various forms of neglect and exploitation.

Nursing home abuse can manifest in numerous ways: physical abuse, the infliction of pain or injury; sexual abuse, inappropriate touching or sexual activity with an older adult who cannot consent, does not consent, is threatened, or forced; emotional abuse, verbal threats, harassment, and intimidation; confinement; passive neglect in which a caregiver fails to provide an elder with necessities; willful deprivation, denying an elder necessities outright; and financial exploitation, the abuse or withholding of the older adult’s resources.

The reality of nursing home abuse can be faced on a criminal level, and in fact, many states have implemented laws that penalize those who have victimized older adults.  For older adults who have faced abuse, their risk of death increases by 300% compared to those who have not been abused.  Because of these startling statistics, elder justice laws have been set in place, varying state by state, and there are attorneys who specialize in taking on these cases, seeking out justice for older adults who have experienced any type of nursing home abuse.

Warning signs can arise in older adults differently, depending on which form of nursing home abuse is inflicted.  Your loved one may demonstrated signs of nursing home neglect such as bedsores, poor hygiene, a change in emotional responsiveness and alertness, withdrawal, or becoming argumentative or terse.  Physical abuse can appear in the form of bruises, pressure marks, broken bones, or scrapes or abrasions, indicating clear signs of mistreatment or neglect.  Nursing home abuse can appear as financial abuse as well, when suddenly the older adult has unexpected changes in their finances or valuables.

Preventative steps can be taken, like seeking legal advice early on to ensure financial stability and protection, searching for a reputable nursing home with a qualified staff, and staying connected to trusted family members, the community, and friends. An attorney can also assist in establishing a living will, cementing your medical and health care decisions with legality, and be an extra pair of eyes to any documents or paperwork that require signing.

Nursing home abuse is an under reported issue plaguing our society, our loved ones, and as we age, it will eventually affect us as well.  According to the American Society on Aging in 2012, nearly 87% of Adult Protective Services (ASA) saw an increase of the number of reports and caseloads of elder abuse over the previous five years.  ASA also reports that the direct expense that amounts from financial exploitation of an older adult was estimated to be $2.9 billion in 2011, an astounding 12% increase from 2008.

At Aronberg, Aronberg, and Green, our team of experienced, seasoned attorneys have accomplished history in elder and nursing home abuse cases, ensuring that our clients and their loved ones see the justice they deserve.  We are finely tuned to the Florida laws on the types of elder and nursing home abuse, fortified with years of successful settlements, claims, and casework, and driven by a passion to find a meaningful conclusion for our clients’ and their loved ones’ difficult situations.

June 4, 2019 · Editorial Team · Comments Closed
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Top 3 Reasons Why You Need to Have a Motorcycle Attorney on Standby

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In this modern era, you are at liberty to use what pleases you when moving around. Technology has made a lot of things possible such as making high quality motorbikes. Motorbikes have become common due to their benefits. One of the major benefits is the fact they are convenient; this is according to thoughtco.com. Imagine if you could avoid being stuck in traffic for hours at a time, wouldn’t that be convenient? People with motorbikes find it very easy to go around traffic and arrive at their destination without wasting time on the road. Don’t forget that these modern motorcycles can also navigate through narrow roads which a car cannot. In addition, motorbikes have less fuel consumption. Basically, they are preferred by many due to their benefits. Despite their benefits, some motorcycles get involved in accidents from time to time. The accidents might result from careless driving or even from ignorance from other drivers. When such situations occur, you have to find a way to repair your motorbike. You need to understand that sometimes you might not be the one on the wrong. This means that the person who hit you should take responsibility. If by any chance they refuse, you might need to hire a motorbike accident attorney for the following reasons:

  1. Case evaluation

One of the first advantages you will enjoy once you have a motorcycle lawyer is that he or she is able to evaluate your case and come up with evidence to support it. He or she is there to give a different perspective. This is a perspective you might not be able to see until you have a third party. If you have the required evidence, then chances are you might win the case in court. Another important point you need to know is that the motorcycle accident lawyers have friends like detectives who are able to help him or her gather evidence that will favour your case.

  • Settlement

How many times have you heard of people settling their cases out of court? This has become a common thing because court cases take time to be processed. Sometimes, the person that you are suing might not have that patience, thus they would prefer to sit with you at the same table and come up with a permanent solution that will benefit the two of you. A motorcycle attorney is there to make sure that the settlement you agree to is fair considering the damages suffered. Sometimes, people can take advantage of you if you happen to show up without a lawyer.

  • Legal representation and complication of the law

The other good thing about having a motorcycle attorney is that he or she takes care of your court appearances. If anyone involved in the accident wishes to address you, he or she will have to go through your lawyer. Your lawyer will also be there to advise you on what to agree to and what not to agree. Your lawyer will always show up for emergency meetings that you are required to be present. Basically, you can continue with your daily life as the lawyer represents you legally. In addition, don’t forget how complicated the law is. It might require you to hire someone to just be interpreting it for you. To save yourself that hassle, just get yourself a motorcycle attorney.

January 28, 2019 · Editorial Team · Comments Closed
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What can result in a birth injury or medical malpractice case?

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There is nothing more delightful for parents than the birth of a child. It brings joy and happiness to the entire family. However, things can go wrong when the medical and healthcare providers become negligent during labor pain, pregnancy or even at the time of baby delivery. It can result in severe birth injuries that will affect both the child and parents in the long run.

Working it out legally

As a parent do you suspect that there has been a birth injury while your baby was born? Do you suspect that there was some negligence of the part of the healthcare provider? If yes, then it is essential for you to choose a lawyer from the best and ace malpractice Birth injury lawyers and fight the case legally. Though money can’t at all compensate a severe birth injury, but an ace lawyer can help you present your loss at the court and seek the required justice. These lawyers will help you explore every minute facts related to your medical case and options that you can attempt to appeal for justice and the deserved compensation.

Today, you can have access to legal firms that have a team of ace lawyers to present cases related to wrongful death, birth and personal injury as well. These lawyers work by having access to the correct medical records. Additionally, they have the legal expertise and experience that will help them to address your case better and arrive at an apt solution. 

The birth injury causes you need to know

Before you opt-in for a birth injury lawyer, it is essential for you to be aware of the causes that result in a birth injury. Some of the essential reasons are as follows:

  • Inappropriate execution of the delivery room procedures
  • Inadequate oxygen supply to the infant’s brain
  • Incorrect monitoring of the fetal heart rate
  • Improper use of the forceps and several other delivery room devices and tools
  • A delayed C-section delivery
  • All kinds of medical processes conducted badly
  • Providing the wrong delivery room drugs to the baby’s mother
  • Monitoring the delivery room patients in an inappropriate manner
  • When the correct delivery room techniques don’t get followed

The common birth injuries

There are times when the hospital staff and delivery room doctors are unable to follow the best delivery room processes and protocols. In such a situation, the chances of birth injuries are more. The typical kinds of birth injuries are as follows:

These are some of the dangers that the medical staff and the healthcare provider need to be aware of before it takes the accountability for delivery.

A birth injury leaves a permanent mark! Hence, it is essential for medical practitioners to be aware of the birth injury penalties that might take place due to negligence on their part. Furthermore, people can opt-in for legal help when they have a birth injury or medical practice at hand and request the legal system for an apt compensation of their loss.

January 10, 2019 · Editorial Team · Comments Closed
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Basics of medical malpractice laws that determine the feasibility of filing a medical negligence case

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Some medical malpractices amount to personal injury, and the sufferer can file a lawsuit for claiming compensation due to medical negligence. If a doctor misdiagnoses a disease that results in wrong treatment, it is one kind of professional malpractice. Again, if a surgeon performs surgery at the wrong site or as reported recently that a surgeon removed the kidneys of a patient by mistaking it as a tumor are glaring examples of medical negligence. Similar are the cases of drug errors that doctors commit very often. In all these cases, the patient undergoes pain and suffering for some mistake on the part of doctors and if you Ask4SAM injury lawyer, they would advise filing a personal injury lawsuit to claim compensation for damages.

Lawsuits for medical negligence can charge hospitals, doctors, nurses, EMTs, or any other medical professionals involved in the process that caused injury to the patient. Besides physical injury, the mental trauma associated with it forms a part of the damages. Medical malpractice is just like any other professional malpractice, and the law comes into force only when an individual receives injuries as explained above during the process of receiving some medical care of medical treatment.

To get the compensation in any medical malpractice, you must be aware of medical malpractices by gathering knowledge about it and know how to lodge a claim by proving it. Medical negligence is the most common form of medical malpractice that we usually experience. It happens when the doctor or any other medical professional responsible for providing medical care fails to perform his or her duty competently.

Since the rules about medical practices vary between States, in this article we will discuss the broad categories of rules applicable to most medical malpractice cases. Keep reading to get an overview of the laws and regulations.

Claim requirements

In the court of law, you must prove comprehensively that medical malpractice has occurred for which you must be able to establish a few facts that demonstrate that there was a professional relationship between the doctor and patient, the doctor was negligent, and the injury resulted in damages.

  • Doctor-patient relationship – The primary requirement to file a claim for damages is to establish that there was a professional relationship between the doctor and patient in which the patient approached the doctor for treating him or her, and the doctor agreed to it. Only when the doctor examines the patient and initiates treatment that you can establish the relationship. The question of relationship arises mostly for consulting doctors not directly treating the patient. Similarly, you cannot sue a doctor who has offered some casual advice without any professional engagement.
  • Doctor’s negligence – Your feelings about poor treatment or unsatisfactory results does not make a case for medical malpractice. It is necessary to prove that the doctor was negligent with respect to the diagnosis or treatment. To build a case for medical negligence or malpractice against the doctor, you must be able to establish that the doctor harmed you in some way that any other competent doctor would not have done under similar circumstances. Medical malpractice claim must adequately establish the fact that the doctor was not reasonably skillful and careful as deemed necessary to carry out adequate medical treatment.
  • The injury caused due to doctor’s negligence – Doctors treating patients with prior injuries compound the problem of patients to establish that the doctor’s negligence caused some injury. The question arises about how much the doctor is responsible for causing harm to the patient.   If a patient suffering from some heart disease dies, then even if the doctor made some mistake in the treatment it is hard to distinguish if the death happened due to the disease or was a result of the doctor being negligent.
  • The link between injury and specific damages – Unless there is a direct link between the lapse on the part of the doctor and the harm caused by it is not possible to file a lawsuit for medical malpractice even if the doctor has underperformed. Only when the acts of the doctor cause injury that results in pain and suffering like mental anguish, additional medical expenses and loss of earning capacity by losing work that it becomes a case fit for suing the doctor for medical malpractice.

Types of common medical malpractices

Medical malpractices can be of so many kinds that it is difficult to make a list. However, all medical practices that can result in claims for compensation fall under one of these categories.

Inability to diagnose – If the doctor treating the patient fails to make a proper diagnosis of the illness and starts some wrong treatment it can become a case for medical negligence but with a condition. The patient must feel and be able to establish that some other competent doctor would have made a different diagnosis with a positive outcome.

Improper treatment – Doctors must follow set treatment protocols for specific diseases, but there are cases when the doctor misdiagnoses the conditions and start wrong treatment that no competent doctor would have done. Also, it might happen that despite diagnosing the disease correctly and even selecting the right treatment the doctor fails to administer it competently and hence could face a case of medical negligence.

Failure to caution patients of known risks – Duty of informed consent is a professional protocol that doctors must follow. It stipulates that doctors must share with the patient all information about the dangers known to them that are associated with the medical procedure or treatment. Making the patients aware of the possible risks helps them to take a well- informed decision. It may happen that they would not like to undergo the procedure or treatment at all. If the doctor fails to share the information with the patient and the treatment or medical procedure results in injury to the patient, it becomes a fit case for filing claim for compensation.

The above information should help you to decide the merit of your case and take the right decision about filing a lawsuit against the erring medical professionals.

January 10, 2019 · Editorial Team · Comments Closed
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Why is it important for healthcare providers to stay HIPAA compliant?

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The new age enterprise landscape is often laden with unwarranted data thefts and risks of multiple kinds. It can be a result of misusing internet. There have been many occasions where sensitive and critical data was at stake because of deceitful third-party intruders who have attempted to steal essential patient data.

Importance of staying HIPAA compliant

IT compliance and security have been hugely gaining importance today in the medical field. Amongst multiple medical security problems, patient privacy still happens to be a huge issue. Most patient’s data today are getting transferred to a digital format. And this has made the medical and healthcare service providers realize that they are susceptible to potential data risks and thefts from time to time. A considerable number of these risks include IT hassles that can result in physical damage to computing equipment, which store important patient health data.  Staying HIPAA compliant is essential to secure your data. Today, you have ace service providers who can help you with this. You can browse through websites like American Retrieval Medical and the like, to know more on the subject.

The implications of HIPAA

Even before HIPAA (Health Insurance Portability and Accountability Act) got enforced, by the Congress back in 1996, no global check was adhered to assure if a medical and a healthcare provider was adequately procuring the important PHI (Patient Health Information). HIPAA was created to foster the confidentiality and portability of patient records and also to establish the need for consistent service in the medical vertical. A few of the new age compliance issues comprise the following:

  • Developing and providing IT compliance and security for auditor reviews
  • To make sure that an organization stays compliant and safe on a regular basis
  • To be able to manage the written agreements along with the compliance proof from all business associate in the healthcare and medical sector who can access the PHI

Keeping in mind the HIPAA compliance guidelines, it is essential for all the healthcare and medical companies to stay tuned with the policies that will help them to safeguard their system. It also gives the patient’s the confidence that all their essential and critical medical data will stay private and confidential.

Is your company a medical or health care service provider? And do you want to attain the same level of HIPAA compliance? If yes, first and foremost you need to make sure you have a medical data retrieval plan in place. Today, there are service providers who provide advanced solutions that provide continuous compliance management and ongoing security management. All this gets created on a framework that allows the companies to have complete management on the compliance levels and also improve the same.

Additionally, all these solutions come with a vulnerability scanning process that is inbuilt. And this is what makes HIPAA compliance simple and easy.  There are many aspects of HIPAA that might be unknown to a medical provider. When you join hands with the apt service provider you know the finer nuances and benefits of staying HIPAA compliant.

January 10, 2019 · Editorial Team · Comments Closed
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Astex Therapeutics Ltd v Astrazeneca AB [2018] EWCA Civ 2444

In this case the Respondent had made an offer which was significantly more favourable to the Appellant than the outcome that the Appellant achieved at trial. However, the offer was not made under CPR Part 36 and therefore there were no automatic costs consequences (following F&C Alternative Investments (Holdings) Ltd v Barthelemy [2012] EWCA Civ 843). However, the offer was relevant under CPR Part 44 which obliges the court to consider all the circumstances of a case when deciding the order for costs. The court considered that although there might be some cases where the refusal to accept a reasonable offer was capable of justifying an award of indemnity costs, that situation would only arise where the failure to accept such an offer was itself unreasonable. In this case it was held that the Appellant’s conduct did not justify an order for indemnity costs and that part of the order was set aside.

December 28, 2018 · Editorial Team · Comments Closed
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Andrew Graeme Waring v Mark McDonnell (unrep., Brighton County Court, 6 November 2011)

The Claimant and Defendant had been cycling in opposite directions and collided head-on. Both sustained personal injury and brought claims for damages. The Judge found for the Claimant and dismissed the Defendant’s counterclaim. It was held that the Defendant was not entitled to the protection of qualified one-way costs shifting in relation to the costs of the Claimant’s successful claim. This was because he was not an unsuccessful claimant in the Claimant’s claim, but an unsuccessful defendant. The court expressly disagreed with the approach taken in Ketchion v McEwan (unrep., Newcastle & Tyne County Court, 28 June 2018) where it had been held that, in CPR 44.13, the word “proceedings” included both a claim and counterclaim.

HHJ Venn stated that, if the approach in Ketchion was followed, a number of undesirable consequences would arise, including the fact that insurers of defendants would be incentivised to bring counterclaims for damages for personal injury to ensure there would be no liability for costs.

December 15, 2018 · Editorial Team · Comments Closed
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Livewest Homes Ltd v Bamber [2018] EWHC 2454 (QB)

The Respondent wanted to oppose an appeal against a possession order, both on the ground relied upon by the first instance judge in his judgment, and/or upon a different basis rejected by the judge at first instance. The Respondent had not filed a Respondent’s Notice to uphold the lower court’s decision “for reasons different from or additional to those given by the lower court“, as it was required to do by CPR 52.13.

The Respondent therefore had to make an oral application, at the appeal hearing, to file a Respondent’s Notice out of time. Dingemans J held that the Respondent was indeed required to file a Respondent’s Notice, and whether permission to file one out of time should be granted was governed by the principles set out in Denton v TH White Ltd [2014] EWCA Civ 906.

Despite the lateness of the application, it was granted. The breach was serious, and there was no good reason for it (the failure appeared to be founded upon the Respondent’s representatives’ misunderstanding of the function of a Respondent’s Notice and of CPR 52.13). However, the point had been ventilated previously and was taken by the Respondent in its skeleton argument, so the Claimant could not be said to be unaware of it; it was a point of pure law, so no further investigation was required in respect of it; and the Claimant’s representative were able to deal with it so there was no unfairness.

Playboy Club London Ltd v Banca Nazionale Del Lavoro Spa [2018] EWCA Civ 2025:
The Court of Appeal held that there was no abuse of process where the Claimant failed to bring a deceit action at the same time as its claim for negligent misrepresentation.

The Claimant was a casino which had extended credit to a customer who had been provided with a good credit reference by an employee of the Defendant bank. The customer defaulted, and the casino brought an action against the bank alleging that the employee had negligently misstated the customer’s creditworthiness in his reference. At the time of bringing that claim, the casino was aware that it may have a claim in deceit against the bank, but considered that such a claim would be speculative and weak. At trial, material emerged in cross-examination which would substantially support a claim in deceit.

The claim in negligence was lost – on appeal, on the basis that the bank owed no duty of care in negligence to the casino, since the casino was not the addressee, but the addressee’s undisclosed principal: [2018] UKSC 43. Following the loss in the Supreme Court, the casino sought to being a further claim, this time in deceit. The deceit claim was initially struck out as abusive, but the Court of Appeal overturned that decision, noting that: (a) the negligence claim was substantially different from the deceit claim; (b) there was a good reason for not bringing the deceit claim previously, namely that the evidence to support it was circumstantial and weak, and it would have been inappropriate to plead allegations of dishonesty on such a basis; (c) the casino had not been acting tactically or ‘keeping its powder dry’; and (d) it would be a “rare case where the litigation of an issue which has not previously been decided between the same parties or their privies will amount to an abuse of process“.

November 28, 2018 · Editorial Team · Comments Closed
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Lewis -v- Tinsdale & the Motor Insurers Bureau [2018] EWHC 2376 (QB)

In Lewis -v- Tinsdale & the Motor Insurers Bureau [2018] EWHC 2376 (QB), the Claimant suffered serious injuries when he was walking on private land and hit by an uninsured Nissan Terrano 4 x 4 vehicle. The First Defendant was debarred from defending the claim and judgment was obtained against him. The Court considered whether Articles 3 and/or 10 of Directive 2009/103/EC were directly effective against the MIB through being an emanation of the state.

At a trial of the preliminary issues, Mr Justice Soole noted that the CJEU had made it “unequivocal that the obligation of compulsory insurance extends to the use of vehicles on private land”. Crucially, he went on to find that the MIB was an “emanation of the state” for the purposes of the Insurance Directives. He considered that Farrell v Whitty (No.2) (C-413/15) [2018] 3 WLR 285 had superseded the reasoning in Byrne v MIB [2009] QB 66 and the observations of Hobhouse LJ in Mighell v Reading [1999] Lloyds Rep IR 30. Further, the MIB was liable to indemnify the Claimant at least to the minimum level of cover under Directive 2009/103/EC, which is EUR 1 000 000 per victim. The question of whether the European principle of equivalence in fact requires unlimited cover was raised late in the hearing and was not fully argued. As such, Mr Justice Soole went no further than to state that Article 3 had direct effect to the extent of at least the minimum requirement of EUR 1 000 000 per victim. Whether unlimited cover is indeed required remains to be seen.

November 15, 2018 · Editorial Team · Comments Closed
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(1) LXA (2) BXL v (1) Cynthia Willcox (As personal representative of the estate of Edward Willcox, Deceased) (2) Cynthia Willcox [2018] EWHC 2256 (QB)

In (1) LXA (2) BXL v (1) Cynthia Willcox (As personal representative of the estate of Edward Willcox, Deceased) (2) Cynthia Willcox[2018] EWHC 2256 (QB), issues of questioning by the court in the absence of a party, s.33 of the Limitation Act 1980 and the valuation of damages in a historical child sexual abuse case were considered.

In this case, a brother and sister brought a claim for personal injury and other losses against their adoptive parents. The Claimants had been sexually abused by their adoptive parents in the 1970s. They had both sustained long-term psychiatric injuries. The Claimants had been adopted in the early 1970s when aged approximately 5 or 6 years old. In 2015, their father (First Defendant) was found guilty of indecent assault, indecency with a male child and child cruelty whilst the Claimants were at their home. Their mother (Second Defendant) was found guilty of child cruelty against the Claimants. The First Defendant died in 2017 and the proceedings continued against his estate. The Second Defendant did not attend the hearing, indicating instead that her witness statement and defence should be considered in her absence.

As the Second Defendant was not represented at the hearing, CPR 3.1A(5) applied which states:
“(5) At any hearing where the court is taking evidence this may include–
(a) ascertaining from an unrepresented party the matters about which the witness may be able to give evidence or on which the witness ought to be cross-examined; and
(b) putting, or causing to be put, to the witness such questions as may appear to the court to be proper.”

As such, the Court put questions to the witnesses. CPR 3.1(A)(5) applied even where the unrepresented party was not present. Equally, where an unrepresented party had indicated matters of concern it was proper for a judge to explore those matters with the witnesses.

The court disapplied the limitation period using its discretion under s.33 of the Limitation Act 1980. The court considered the factors listed in s.33(3) and in particular s.33(3)(e) which states:
“the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages”.

Here the Claimants had known from the outset that they had been abused but they had, understandably, been reluctant to report the abuse. The psychiatric evidence was that very few sexual abuse victims felt able to report parental abuse and that both Claimants had feared that the Defendants would kill them if they took action. Another relevant factor was whether the evidence was likely to be less cogent and reliable due to the delay. Equally, it was noted that assessing the loss was inevitably going to be more difficult given that the historical nature of the injuries. However, the Court considered that since the medical records were available and psychiatric injuries are often experienced over a long period of time, a fair trial was possible.

In relation to liability, the Defendants did not discharge the burden in s.11(2)(a) of the Civil Evidence Act 1968 which states:
“(2) In any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence by or before any court in the United Kingdom…–
(a)he shall be taken to have committed that offence unless the contrary is proved.”
It was additionally held that, on the balance of probabilities, the First Defendant had raped the Second Claimant on one occasion.

The First Claimant sustained an adjustment disorder and dysthymia following the abuse. He required cognitive behavioural therapy which was estimated to cost £4,800. His psychiatric injury was valued at £35,000, falling within the moderately severe psychiatric damage bracket in the Judicial College guidelines. He was also awarded £40,000 for loss of earnings, pursuant to the approach in Blamire v South Cumbria HA [1993] P.I.Q.R. Q1. His total award, including therapy costs and travel, was £115,040.

The Second Claimant sustained an adjustment disorder and a recurrent depressive disorder. She also needed cognitive behaviour therapy at an estimated cost of £4,800. Since the sexual abuse had been particularly serious, a higher award of £80,000 was justified. She was awarded £76,000 for past loss of earnings. In terms of her future loss of earnings, she was only working at 80% capacity and therefore was awarded £17,564.27. Her total award was £186,011.08, which included an award for past and future prescription costs.

November 4, 2018 · Editorial Team · Comments Closed
Posted in: Cases