Medical Negligence Claims Process
This is what should happen when a solicitor looks into a potential clinical negligence claim.
The initial investigation and pre-action protocol process
- There is a complaints procedure (called Local Resolution) that you can go through with your healthcare provider. It will often be a good idea to do so and we help our clients with the complaints process. Getting a written response to a complaint is an early opportunity to know what the healthcare provider’s version of events will be and whether there are any factual disputes between patient and healthcare provider.
- It will be necessary to apply for copies of your medical notes from your GP and any hospitals/other places where there has been relevant treatment. The copy records are sorted into a presentable order, with an Index, each page is numbered and usually, a Chronology is prepared. A Chronology is a document that summarises the most important entries throughout the medical records. It is a quick, easy reference document for the solicitor, the barrister and medical experts, as well as the court.
- Should the medical records show that you have a reasonable case to investigate, then these are sent to the appropriate speciality medicolegal experts to produce reports on whether there has been substandard (i.e. negligent care, a breach of duty) care. It is not sufficient to just establish that there has been substandard care. A medicolegal expert also has to give an opinion that the substandard care has caused an injury to you, or a worsening in your medical condition (the test of causation).
- You can make a claim for “special damages”. These are financial losses arising out of medical injuries suffered relating to any substandard care. We ask clients to keep a note of all expenses they incur as a result of substandard care and to send us any relevant documentation. For example, you may have spent more time at home, away from work because of an extended recovery, in which case home heating bills may have increased and you may have paid for help around the home and garden. In addition, we may need to write to employers for details of loss of earnings.
- Once we have sufficient information to do so, a letter is sent to the healthcare provider detailing the basis of your claim to the Defendant. This is referred to as a Letter of Claim
- The Defendant will then have 4 months to reply to this letter to let us know whether they intend to admit your claim or to dispute it. This is required by a set of rules known as the Pre-Action Protocol.
- If the Defendant disputes your claim then we will consider whether we should offer to engage in an alternative dispute process to try and settle the claim a little quicker, with less costs and to avoid issue of proceedings. Otherwise, we will advise you on starting the litigation process in court.
- A Barrister (also referred to as Counsel) will be instructed to look at all of the evidence in your case and if necessary, we will arrange for a conference at which we will meet with the barrister and the medical experts to go through any questions arising out of their written opinions and to test the strength of their opinions. This is important because the potential Defendant healthcare provider will very likely obtain independent medicolegal reports of their own. In order to go forward, we have to be satisfied that opinions of medico-legal experts who will stay firm in those opinions. Subject to this, the Barrister then prepares a Particulars of Claim (a document setting out background to the claim for the Court and the reasons for the claim).
- The Particulars of Claim, a Schedule of Special Losses (financial losses) and a medical report on your current medical condition and future prognosis is then served on the Opponent, either before or after issue of a Claim in court. The Defendant may then admit the claim or serve a document called a Defence, in which case we may proceed to Trial in court.
- After service of a Defence, it can take a further 18-24 months to get to a Trial date with various evidential steps to complete before Trial. The Court sets in place a timetable, requiring the parties to exchange lists of their relevant documents, to exchange copies of witness statements and expert reports etc.
- In our experience, most cases settle without a Trial having to take place. Negotiations often start after exchange of expert evidence, within 3 months before a Trial date.