Pursuing a medical negligence claim might initially seem daunting – especially as the vast majority of people are unlikely to have gone through the process before.
The aim of this blog is therefore to provide a brief summary of the process, from first contacting our firm through to (hopefully) achieving a successful outcome.
The first step is for you to contact the firm to provide a brief summary of why you think you might have a claim. One of our specialists will then assess whether you are in time to bring a claim, whether there are likely to be sufficient prospects of success and if so, assess the potential value of the claim. You can contact us on 01616 966 229 or use our online enquiry form.
If we believe the claim is worthy of further investigation you will be advised of funding options. A very limited type of claims are eligible for legal aid. Other clients might already have legal cover attached to insurance products (such as home insurance). However, the most common form of funding tends to be a ‘no win, no fee’ agreement.
The first step is for us to obtain a complete set of your medical records. These will be reviewed by an in house nurse, as well as by a solicitor within the team. Following a review, if your claim is more likely than not to be successful then we will notify the defendant of the likely nature of your claim and invite them to make early admissions.
To be successful with a medical negligence claim it is necessary to prove two tests. Initially we need to show that the treatment, or lack of treatment, provided to you was unreasonable (breach of duty). We then need to prove that, as a result, harm has been caused (causation). To help establish these two tests independent medical experts will be instructed to prepare reports. Experts can only comment on areas within their direct specialism. For example, a GP can only comment on the actions of other GPs. As such, in many cases, numerous reports will be required. In addition, it is possible that you will need to be examined by an expert to help him or her comment on how you are likely to recover in the future. This information is especially important when valuing a claim.
Valuing a claim
Once we have obtained supportive expert evidence on issues of breach of duty and causation we can start to look at the value of your claim. To value your claim it is necessary to consider your pain and suffering (general damages) as well as your out of pocket expenses (special damages).
General damages are calculated by considering any relevant court guidelines as well as by exploring settlements other clients have received in similar circumstances.
Special damages consist of any past or future losses that you have suffered (such as travel expenses or loss of earnings) and any additional assistance you have required from friends or family. In higher value cases it is might be necessary for independent experts to provide some assistance to help identify and explain various items that might assist you such as property adaptations or aids and appliances.
Presenting a case to a defendant
Once all necessary supportive expert evidence has been obtained we will be in a position to present a claim to a defendant(s) in a document called a letter of claim. This document summarises our allegations and gives some detail to allow a defendant to value a claim. A defendant will then have four months to investigate, obtain their own reports, and to confirm whether the claim will be contested or admitted within a letter of response.
Considering the letter of response
If the defendant makes admissions, then the next step will be to explore settlement. It might be that offers are made in writing or, in higher value claims, there might be a meeting between the parties to attempt to agree an appropriate amount of compensation. If the defendant denies any wrongdoing then the independent medical experts will need to consider the letter of response to confirm whether they still remain supportive of your claim.
Starting court proceedings
If a settlement cannot be reached (either the parties are a distance apart in their valuations, or the defendant is denying a claim) then it might be necessary to involve the court. A barrister will often be instructed to give a second opinion and a conference might be arranged with the experts and barrister to test the evidence. If we remain confident that the evidence stands up to scrutiny then court proceedings will be started.
Starting a claim at court does not necessarily mean there will be a trial. Indeed, the vast majority of claims do not get that far. Instead, the court will set a timetable to help encourage resolution. The timetable will include directions such as exchanging statements from the people involved in your treatment and recovery (such as you and the relevant doctors/nurses), exchanging expert evidence and even setting a date for your experts to meet with their defendant’s experts to narrow any issues of disagreement. However, if the parties still cannot reach a settlement, then a judge will need determine the merits and value of a claim at a final trial. On average the trial will usually be about 18 – 24 months after proceedings have been started.
Claims can be lengthy – with the average claim length being several years. However, throughout the process you will be advised of the next steps and the projected time frames to reach that goal. Your specialist solicitor will also be more than happy to answer any concerns or queries throughout the lifespan of your claim.
If you believe that you or a loved one have suffered as a result of negligence by a medical professional call us on 01616 966 229.