It can seem daunting to make a medical negligence claim, largely because the claim process is widely unknown and also understandably unfamiliar if you have never made a medical negligence claim before. It can be a really good idea to familiarise yourself with the backbones of this process before starting a medical negligence claim, so that you have an idea of how the claim progresses, from the moment you have given your solicitor instruction.
This step by step guide is the basis of what generally happens after you give instruction to your solicitor, and can help to demystify the medical negligence claim procedure before you embark on your own claim.
1) Initial Consultation
This will be a conversation between you and your solicitor where the main concerns of your medical negligence claim are discussed, the treatment you were provided and losses you have suffered. Your solicitor is of course, a solicitor and not a medical professional, and so they will consider expert’s opinions in similar cases to yours.
Providing that your solicitor is satisfied that there is a potential in your medical negligence claim, they will discuss with you how your claim will be funded. At Freeman Harris, this is usually with a CFA i.e a Conditional Fee Agreement, more commonly known as a ‘No Win No Fee’ agreement. This means, that if you don’t win the case, there are no fees owed to you, and if you win, the legal fees are taken from the compensation owed. Owing to this, you do not need to worry about any financial losses made to you when making a claim owing to this funding agreement, if you have any questions about this please do not hesitate to get in contact with us.
3) Medical Records
Once the funding is in place, your solicitor will request to obtain your medical records from the health care providers or your GP. Once these have been requested, the health care provider must release the records within 40 days. If they do not do this, you can make an application via the court to force them to disclose. Once the records have been received, the medical records will be paginated and then kept in bundles. It is worth noting that all parties can access these bundles. A ‘chronology’ will usually accompanies the records, this details what the solicitor considers to be significant in their reading of the records, to assist the expert in identifying negligent treatment.
4) Expert Instruction
Once your records have been received and studied by your solicitor, the expert will be instructed. A solicitor is not entitled to give medical advice, so an independent medical expert working in the same field as the health care provider that treated you, will be instructed to prepare a report. The report that exhibits negligence must do so on a ‘like-for-like’ basis. In other words, an expert with a similar level of experience in circumstances identical to those that occurred at the time that the health care provider treated on. Any expert instructed must review and consider from the circumstances as they would have been presented at the specific time that you were treated.
What Happens When An Expert Is Instructed?
Experts are to discuss the treatment that was provided to you at the time and state whether it fell below the standard of care that you would be entitled to expect and therefore to determine negligence.
5) Valuing A Claim
Once supportive expert evidence has been gathered on the issues of breach of duty (i.e the failure to provide suitable care) and causation (how the negligent care provided has negatively impacted you) then the value of claim is assessed. In order to do this, it is necessary to consider the general damages (pain and suffering) as well as the money side of things, known as special damages- this is if you’ve had to stop work or spend money on things like housing adjustments or physiotherapy services i.e expense you wouldn’t otherwise have had to pay had the negligence not happened.
General damages are calculated by taking into consideration any relevant court guidelines provided as well as by exploring the settlements that other clients have received in similar circumstances.
Special damages constitute 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 loved ones. Where there is a high value case, it might be necessary for independent experts to provide assistance in identifying and explaining items you can purchase that will enable you to have the best quality of life possible, such as housing adaptations or specialist cars.
6) The Letter Of Claim
Once medical reports have been received to show negligence for the explained reasons, your solicitor will then be able to draft a letter of claim to the defendant. This is a detailed letter that sets out the history of the matter, the reasons why the treating health care provider in question is said to be at fault and the resolve you seek as a result of this. The defendant has 14 days to acknowledge the letter of claim once it has been sent. After this, the defendant, their insurance or a solicitor acting as their representative, must respond within 4 months. This is the protocol period and the guidelines are set by the court. Either party that fails to follow the guidelines can incur serious costs. Your solicitor will be able to advise whether or not to disclose early on in proceedings that you have obtained a medical report from an expert. Sometimes, the medical report isn’t disclosed until later but your solicitor will discuss this with you.
7) The Letter of Response
This is the letter sent from the defendant and must set out what parts of the letter of claim are admitted and what parts are denied and to provide any relevant documentation.
8) Negotiations/Alternative Dispute Resolution (ADR)
Settlement is always the preferred outcome of medical negligence cases, as it saves a lot of stress, time and the cost of litigation. Both NHS resolution and your solicitor will seek to achieve settlement at the earliest opportunity, also known as ADR (Alternative Dispute Resolution).
9) Claim Form and particulars of Claim
If the case can’t be resolved after the letter of response and no settlement agreed, then you may start legal proceedings via a claim form. Once the claim form is issued, you (the claimant) then has 4 months to serve it to the defendant. The Particulars of Claim is a formal document, and it details the precise facts that your claim is relying on and the allegations you are making. This is served at the same time as the claim form or within 14 days.
10) The Defence
This is the other side’s formal response to the particulars of claim. They will respond to each paragraph and state whether they admit fault or deny. The defence must be served within 28 days of the particulars of claim being served, unless an extension is agreed.
11) Witness Statements
Both you and the defendant will provide witness statements, and these will be exchanged. These are factual witness statements and the defendant will state his or her actions taken, the reasoning behind these actions taken or certain actions not being taken and sometimes, using a hypothetical situation to explain what would’ve happened.
12) Experts from the other side
Experts will be consulted by the other side also, to provide a report like yours.
13) Settlement/Court Proceedings
The case will either settle on an agreed compensation, or if not, court proceedings will be issued and a court timetable distributed between parties. It must be reiterated that starting a claim at court does not necessarily mean that the case will actually end up going to trial. The court timetable encourages settlement more than a trial, as this will include directions like exchanging statements from the people involved in your treatment and recovery, exchanging expert evidence and setting the date for the experts from both sides to meet, to lessen or even completely eradicate any areas of disagreement. Ultimately, if a settlement cannot be reached, a judge will determine the outcome at a trial. On average, the trial will usually last anywhere between 18 – 24 months after proceedings have started, so it is clear as to why it is preferable to settle, however if a case needs to go to court, then it should and will.
These steps may seem long, complicated and confusing, however if you are thinking about making a medical negligence claim, you should be rest assured that our team at Freeman Harris have years of experience in this field, and will offer both their knowledge and expertise with care and compassion.