Medical Negligence Solicitors

Pre-action

Estimated timescale: 3-5 months

We will apply for all the relevant medical records. The records can take up to 8 weeks to be provided to us.

Once we have your records, we will take an initial statement from you. We will cross reference your recollection of events with your medical records.

We will forward to you the necessary forms to complete and sign for us to obtain the records once you have authorised us to act on your behalf.

At the same time, we ask you to gather together all documents and information available to you that relate to any financial losses or expenses you believe you have incurred as a result of what you believe to be the result of negligent medical care.

Once the statement has been taken, we will send the statement to the insurers together with the application form and ask them to provide cover for your claim.

If the insurers agree to cover the claim, then we will move on the stage below.

If the insurers refuse cover, then we will discuss your options at that stage.

Instruction of independent medical experts on issues relating to the quality of care and cause of injury.

Estimated timescales: 3-9 months

To succeed in a claim for compensation arising from medical care you have to be able to prove on the basis of independent medical evidence that:

The care provided was of such low standard that it was negligent; and
The identified negligence caused an injury and financial loss.

We will therefore instruct an expert(s) to advise on the quality of care, the cause of injury (or death in fatal cases) and on your future condition ad prognosis.

In some cases, it is appropriate to obtain an expert report first. We will advise you why we have chosen an expert to look at the quality of care or an expert to look at the cause of your injury.

We will forward to you a copy of the expert letter of instruction to keep with your records.

Instruction of Counsel (Barrister) to review and advise on merits (often in conference with medical expert)

Estimated timescales: 1-3 months

It is only on receipt of independent expert evidence that we can properly assess both the prospects of the case succeeding and the likely value of the claim.

Once we have a Breach of Duty report we will then advise you again as to the prospects of success.

We may, at this stage, arrange a conference with the medical experts and a specialist Barrister (otherwise known as Counsel).

You will be invited to attend any conference with Counsel and experts, and it may be that you would wish a member of your family to attend with you for support.

Clinical Negligence Protocol

Estimated timescale: 4-6 months

There have been many changes over recent years to the way in which we proceed with clinical negligence claims. One of these changes was to introduce the clinical negligence protocol. This protocol provides guidelines to both parties as to how to conduct themselves through the initial states.

Prior to commencement of proceedings, it is expected that the Claimant (i.e. you) will serve a “Letter of Claim” on the other side (the Defendant). This letter outlines the basic medical facts and details the allegations of negligence together with discussion about the cause of your injury and any likely value of the claim. The Defendant then has four months within which to serve a “Letter of Response”.

This is an important stage in a clinical negligence claim as it is the first point where we can ascertain how the Defendants are going to defend the claim and argue their case. It is usual for the medical expert(s) to agree the draft Letter of Claim. You will be asked to review it and agree the contents prior to the service on the Defendants.

It is usual for this stage to have been completed before proceedings are commenced. There are some circumstances where it is not possible to comply with the clinical negligence protocol prior to issue of proceedings i.e., where a Claimant comes to a Solicitor close to their limitation period. However, in most cases, a Letter of Claim and a Letter of Response will be served.

Commencement of proceedings

Estimated timescales: 3 months and 1 day

Proceedings are commenced when the Claim Form is issued (stamped) by the Court. There is a time limit for commencing proceedings. If the claim is for an adult, it is three years from the date of an event or from when you knew or should have suspected that the care provided might be substandard. This time limit for a child is three years from the child’s 18th birthday. Subject to certain tests, children or adults with brain damage which prevent them from managing their own affairs, will not have any time limit to start of proceedings.

The Defendant has to be given three months’ notice of an intention to commence proceedings with full details of the case to be made. This is intended to: –
Help them investigate the claim;
Help them make an informed decision about whether to fight the claim or not;
Encourage them to admit their liability in appropriate cases; and
Prevent further delay if proceedings are started.

If a Letter of Claim has been served and a Letter of Response received, then the Defendant will have received the above information.

Statement of Case

Estimated timescale: 1-2 months

Each side has to state what their case is in a document known as the Statement of Case. The person who makes the claim is known as the Claimant.

The Claimant’s claim is set out in a document called the Particulars of Claim and is sent to the opponent with the Claim Form. This is called serving the proceedings. The opponent is called the Defendant. Their case (which is always served in reply) is called the Defence.

Allocation to Track

Estimated timescale: 3-4 weeks

After the Defence has been served the Court will send a questionnaire to complete about the case. They will then decide which track to allocate the case to. The majority of medical negligence cases will be allocated to what is called the multi-track. This means that they will be allocated more trial time and different rules will apply.

Case Management Hearing

Estimated timescale: 4 weeks

In the most complex cases the court will have a Case Management Conference (CMC). This is an administrative hearing at which the Court will decide upon and set the timetable for the management of the case. In some cases, this procedure may be done by post or e-mail.

Fixture for Trial Date

Estimated timescale: 4-7 weeks

The Court will fix a date for Trial. They will try to fix the earliest date as possible but will allow time for the procedural steps in the timetable to be completed and will take account of the availability of experts.

Disclosure

Estimated timescale: 4-7 weeks

You and your opponent are required to list and disclose all documents which are relevant to the issues in the case, even if they are unhelpful to your case. It is therefore important that you retain, for example, copies of all documents which relate to your financial loss.

Exchange of factual witness evidence on issues of negligence and causation with Defendant.

Estimated timescale: 2 months

We will exchange our factual witness evidence about what happened with the Defendant. In your case this will be your statement and that of anyone else present at the key time(s) whose evidence we wish to rely upon. The Defendants will serve statements from all the medical and nursing staff whose evidence the Court will seek to rely upon at Trial.

Conference to review evidence, merits and quantum.

Estimated timescale: 1 month

It is important for us to know how, if at all, the Defendants evidence affects our experts’ opinions. It is often helpful to review the factual witness evidence that we receive from the Defendants in a conference with our expert(s).

In some cases, we may canvas the views of our expert(s) in writing only.
Following this stage, we will ask our expert(s) to finalise their report ready for service on the Defendants.

Evidence of expert evidence on issues of negligence and causation with the Defendants.

Estimated timescales: 2-3 months

The next step in the proceedings is the exchange of expert evidence on the issues of quality of care and cause of injury. Until this stage, neither side will have seen the expert evidence to be relied upon by their opponent. In many cases the identity of the other side’s expert(s) will be unknown until this stage. This is a key stage in litigation.

This stage is the most important one so far as assessing the strength of the case has been put to for each party. It is the stage that the most accurate assessment of prospects of the case succeeding can be made.

Conference to review evidence, merits and quantum

Estimated timescale: 1 month

Generally, it will be necessary to review the expert evidence in conference with our expert(s). Often this will be done very shortly after the evidence is exchanged. The purpose of such a review is to consider what further preparation is required for Trial as well as reviewing the strength of the case.

Report to the Insurer/Funder.

Estimated timescale: 2 weeks

After the exchange of expert evidence, all funders/insurers require a detailed report on the merits of the case. This is because they need to decide whether they are willing to fund the case and to assess their risk.

If you are a privately paying client i.e., you are funding the case yourself, you will want to carry out the same risk assessment. We will advise you fully.

Detailed preparation of financial loss of claim and service of schedule of evidence.

Estimated timescale: To be prepared at the same time as the medical evidence

Prior to proceedings being commenced, it will be necessary for us to gather information and documentary evidence from you in order to assess the likely value of the claim.

Once proceedings have been issued and served, we will have to serve a schedule detailing your losses up to that date and identifying the likely losses that will be suffered in the future as a result of the negligently caused injury or death.

About 3/6 months after the case management timetable is set, we will have to serve a further schedule detailing all the past and future losses. We will have to serve any documents, witness statements or expert reports that will be relied upon to prove the claim. The preparation for this will be on-going throughout. It is important that you keep records of any expenditure and losses throughout and that you keep us informed of these. Depending upon the nature of the financial costs claim, further non-medical experts such as an employment expert or care expert may be instructed to advise in order to enable us to quantify the claim.

Service of Defendants counter schedule.

Estimated timescale: 2-3 months

If the Defendant intends to oppose the financial loss claimed, they will have to serve a counter schedule and any evidence relied upon in support of their counter argument. Generally, this document is served 2-4 months after service of your schedule.

Sometimes service of this document will be accompanied by an Offer to Settle.

Review of evidence, merits of quantum.

Estimated timescale: 2-3 months

Once the Defendant has served its schedule, we will need to review the value of the claim. Often this review will be done at the same time that we review the Defendants medical evidence and thus the strength of the case.

Estimated timescale: 2 weeks – 4 months

The Trial date will have been set for some time and you will know, not only the date, but also on estimate of how long the Trial will last. The run up to the Trial is usually a period of intensive work. There may well be a further conference(s) and there is likely to be frequent telephone and letter contact between you and us.

Many clients describe this period as being the most demanding stage of the case because the “pace” is so much faster and intense than earlier stages. The majority of cases settle sometimes before Trial.

Settlement and Assessment of costs

Once the case is resolved, whether by an agreed settlement or by a Judgement, costs must be address. This stage will be dealt with by ourselves.