To be successful in bringing a medical negligence claim you have to prove that the standard of care that you received from your doctor, fell below that of a reasonably competent doctor. Not only that, you have to go on to prove that their negligence went on to cause you an injury. In legal terms, this is known as establishing liability and causation. You need to establish both liability and causation in order to succeed.
To investigate the standard of care afforded to you and the injury caused to you by any alleged negligence, your full medical records will need to be obtained and independent medical experts instructed to report on these aspects of your case.
We have a panel of tried and trusted experts that we instruct to assist us with our investigations into your case. When considering liability, we will select an expert of the same speciality that you are making the allegations against, to consider the evidence and advise whether or not, in their professional opinion, your treatment fell below the standards expected of a reasonably competent doctor or nurse.
When considering injuries you have suffered as a result of any negligence, we may need a number of reports from experts of different specialities. We need to prove that, but for the negligence, on the balance of probabilities, the injuries that you have sustained are causally linked to the alleged negligence rather than to any underlying condition that you were suffering from. If appropriate you may also need to be examined by an independent medical expert or experts to give an opinion on your current condition and prognosis.
If we are unable to obtain supportive independent medical evidence to establish liability and / or causation, then we would not be able to pursue your claim further and would advise you accordingly.
If the reports we obtained were favourable then, depending on the complexity of your case, we may at that point hold a conference with a barrister who specialises in clinical negligence claims to discuss with the experts, and yourself, the relative merits of your case and how to proceed further with your claim.
If your claim is felt to have reasonable prospects of success, then the next step would be to follow the Clinical Negligence Pre-Action protocol, by preparing a detailed Letter of Claim to the Defendants. This would set out your details, a brief summary of your claim, the allegations that you are making and a summary of the injuries that have been caused to you as a result, together with your current condition and prognosis. The hospital or doctor concerned would have a period of three months to reply with a detailed Letter of Response, which would give you an indication as to whether the claim was to be defended or not. If the Letter of Response made some admissions regarding liability and causation then we would hopefully be able to enter into negotiations with the hospital, trust or doctors representatives to obtain an out of court settlement for you.
More often than not, medical negligence claims are defended (at least to start with). If this was the case, then we would have to consider the Letter of Response provided by the hospital trust or doctor with our experts (and possibly our barrister) to see if there is anything raised by the hospital or doctor that changes our experts view of your case. If the experts we have instructed still strongly support your claim, then we have to consider the next step of issuing court proceedings.
A Claim form will be issued out of court which will need to be served on the Defendant hospital, trust or doctor within four months of its issue. A document setting out the allegations of negligence and the damage caused as a result (known as the Particulars of Claim) will also be served on the Defendants. A report on your condition and prognosis will be served and a document setting out what financial losses you have suffered as a result as well (known as the Schedule of Loss).
The Defendants will then have a period of 28 days to provide their Defence. It is quite usual, due to the complexity of medical negligence claims, that further time will be sought by the Defendants to serve their Defence. This document deals with the allegations in turn and will either seek to justify, or perhaps make some admissions about, the treatment you received and whether or not it is their view that the injuries that you suffered from, were caused by the alleged negligence.
At this stage the court holds a hearing for both parties’ lawyers to attend, to set a timetable to bring your claim to trial if necessary. The court sets an Agenda for several steps to be taken before trial. The key stages are; exchange of witness statements of fact (usually provided by yourself and the treating doctors involved in your care), exchange of medical evidence both in respect of liability, causation and your condition and prognosis and most importantly a meeting of the parties’ experts to discuss your case and their opinion. In more complex cases, where you have been left requiring ongoing care, aids and equipment and possible adaptations to your property as a result of the alleged negligence, reports may be obtained on these needs. These reports are obtained by both parties to help value your claim (known as quantum reports). In less controversial areas of your claim, they may be instructed on a joint basis.
Alternatively it may be agreed between the parties that you will disclose your quantum reports first to see if the Defendants agree with the evidence or wish to ask further questions of that expert. If this evidence is not agreed, the
Defendants may go on to obtain their own quantum evidence. Please note that the medical experts and non medical experts have a duty to the court to give their independent professional medical opinion, which cannot be influenced by the person who has instructed them to act on their behalf.
Once the meeting of experts has taken place a Schedule is drawn up, which sets out the matters that can be agreed between the parties and which issues still remain in dispute and why.
By this stage you are heading towards trial. It may be that, at that stage you will have a pre trial conference with your barrister and medical experts to review your case, and consider its strengths and weaknesses. You may also find at this stage that the Defendants start to enter into negotiations and start putting forward offers to settle your case. Alternatively, you may be advised by your legal team to make an offer to settle your claim or, in the worst case scenario, consider withdrawing your claim if you no longer have a sufficiently strong enough case to succeed. Such major decisions regarding your claim would have to be considered very carefully indeed and we would help and advise you in coming to that decision.
If settlement cannot be achieved by negotiations and you are advised that your claim still has merit to proceed to trial, then your case is listed for a trial hearing which is likely to last a number of days, depending on your case’s complexity and the number of witnesses and experts involved. You will be guided through the trial procedure and prepared for the trial beforehand. However, very few cases do go all the way to trial, although quite often settlement can take place a matter of weeks or days before trial.
At the trial, the judge will hear the evidence brought forward by both legal teams and will ultimately make a decision about whether or not you have established your claim for negligence and what injuries have resulted as a consequence. The judge will then make a decision, having heard the barristers for each respective legal team’s evidence on quantum, about what award of compensation should be awarded to you and how this should be paid. In rather substantial cases, where there is perhaps a large claim for ongoing care, he may order that part of the monies to be paid by installments for the rest of your life, linked to a suitable index to ensure that the payments keep up with the ongoing cost of care for example. This is known as periodical payments.
Once a settlement has been either agreed or awarded by the court and our costs have been agreed with the Defendants, you will receive your compensation.
Receiving your compensation monies leaves you with all sorts of other decisions about what you want to do with your award. You may need to consider setting up a Compensation Protection Trust if you are in receipt, or are likely to be in receipt of any means-tested benefits to make sure that you don’t lose your entitlement to these. Our specialist Trust lawyer can advise and help you with this decision. We can also put you in touch with an independent financial adviser, if you do not already have one, to make sure that you make the most of your compensation monies.
It may also be a good time to get your house in order and consider making a Will if you have not already done so, or review your existing Will with our Wills & Probate Department. We can advise you on how to minimise any future potential inheritance tax liability. If you are looking to buy a new property with your compensation monies, our Conveyancing Department can help you with this.
Making a medical negligence claim can be a long and complex process but, with our friendly and professional team of specialist lawyers, we will seek to minimise the stress and hassle for you.
Heptonstalls are renowned experts in dealing with medical negligence compensation claims, both regionally and nationally. For more information call our medical negligence team on 01405 765661 or free phone 0800 387077.
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