The human body is complex so proving clinical or medical negligence is not straightforward. It is however possible if you choose the right legal team.
This is an important point. It is vital to choose a Solicitor who specialises in the clinical negligence field, provides a personal service and you feel comfortable dealing with.
Some cases are ‘open and shut’ and may well be settled out of Court, but if your case is of a higher value or more open to debate, there may be more involved.
Every situation is different, but here are the key stages in a typical claim.
Do you have a claim?
Your Solicitor will review your case with you and may, with your permission, obtain your notes for their experts to review.
Of course this can all happen at a difficult time if you are in pain from the injury or you treatment, but a good Solicitor can be part of the solution.
For example, we often help our clients with other, related issues, such as accessing additional treatment, getting further medical opinions or negotiating the welfare benefits maze.
Remember, the initial case review is important. A good Solicitor will weigh up the chances of success in bringing a claim and help you decide if you wish to pursue the case.
They may well offer you no-win/no-fee or similar terms if they believe your case is strong, so it is their interests to be thorough.
Taking a clinical negligence case forward
Here are the key steps…
Provisional expert opinion
This will indicate if there is a potential claim, usually subject to further investigations, and will answer questions such as:
- Did the professional treating you achieve the standards expected in his/her field?
- If not, would this amount to a breach of duty/negligence?
- Did any negligent treatment given cause an actual injury?
- Should we should seek expert opinions from specialists in other fields or obtain further medical records?
We normally consult a barrister who specialises in clinical negligence cases for advice on developing the case and on the probability of success in the courts.
Letter of claim
We write to the healthcare provider setting out the basis for the claim, usually quoting our expert’s provisional opinion and report.
The healthcare provider must acknowledge receipt of the letter within 14 days and has 4 months to investigate and respond to the claim.
If liability is denied…
We would consult our medical expert and barrister to discuss any points raised by the other side, with a view to addressing their arguments and persuading them they should settle.
If the medical evidence on liability and causation of the injury is strong, we would obtain further medical evidence to quantify the value of damages.
These reports would give an opinion on your recovery prospects and any permanent disabilities, any impact on ability to work, future treatment requirements and any rehabilitation needs and costs.
If the healthcare provider still denies liability we would go to court, provided we have enough supportive medical evidence and the prospects of success are strong.
Clients do not normally need to attend court, apart from any case management hearing or final hearing. In these situations the barristers do most of the talking and negotiating.
If liability is accepted…
We would go about putting a figure on the claim according to losses incurred, impact on ability to work and earn, and the costs of care and rehabilitation required.
Further reports from experts may be necessary to strengthen our negotiating position with the provider and its insurer. We are well-known for being tough negotiators when required!
Settlement amounts are usually agreed by referring to past case law and the ‘JC Guidelines’.
You would be awarded general damages for pain and suffering, along with special damages if you lost out financially, say due to, such as loss of earnings, rehabilitation costs or treatment costs.
We review settlement offers carefully, taking into account all aspects of the case to decide if the offer is reasonable. This is a negotiation so it is not unusual to reject first offers.
Usually we will reply to the defendant with a higher offer and for us it is all about finding the maximum figure that the other side is willing to accept, within our acceptable range.
There are various pressure points we can use to influence the process and sometimes we will meet with the other party face to face to resolve the final issues and reach a settlement.
If there is a complete impasse then sometimes progress on a difficult issue is possible with input from a judge at a case management conference, which sometimes leads to settlement.
This again can help focus minds on resolving issues.
You, the client, make the final decision on accepting or rejecting any offer. We would explain to you how much you would get and how costs would be dealt with before you decide.
Damages are normally paid by way of either cheque or BACS bank transfer from the Defendant into our bank account. We then forward you the money you are owed.