Negligence can occur in a variety of medical contexts:
- Hospital: hospitial settings present the potential for a wide spectrum of potential negligence cases.
- Surgery: this includes instruments left inside the body or wrong operations being carried out.
- GP: mistakes made by GP’s can sometimes have long-term health repercussions, which can have serious consequences for you and your family.
- Cosmetic: cosmetic surgery is on the rise, including operations on the NHS and PIP implants, which have impacted a number of women in the UK.
The clinical negligence lawyers at Express Solicitors realise how important it is that you are kept up to date with the progress of your case and that you understand what will happen next.
The following guide will give you a step-by-step overview of the process involved in pursuing a clinical negligence case.
Stage 1 – The Initial Investigation
Stage 2 – Making a Claim
Stage 3 – Litigation – Court Proceedings
If you wish to discuss any aspect of your case then you should telephone the lawyer who has conduct of your case on 0161 904 4660 .
This stage involves preparing the case, examining the relevant medical records and selecting the most appropriate medical expert for your case.
At the earliest opportunity we will discuss the circumstances of your case and obtain as much information as possible about the events of which you complain. You may wish to provide a written diary or notes, which we will take into careful consideration alongside any other information you provide.
With your consent we will then arrange to obtain the relevant medical records from the GP, hospital or private clinic. Your solicitor will often obtain medical records from a number of different sources to piece together evidence that may be vital to your case.
In the initial stages of a clinical negligence case there is a Code of Conduct to follow, known as the Protocol for the Resolution of Clinical Negligence Cases.
Preparing The Case
Your lawyer will then sort the records into a logical order and take your instructions on entries in the medical records and provide you with a copy if you wish.
Once the records have been prepared we will source the most appropriate medical expert to provide an opinion in your case. We will always ensure they do not know the medical staff involved in your case in order to avoid any conflict of interest.
Once we have identified a suitable expert, they will use the documentation we have prepared to provide a medical report dealing with the relevant issues. The medical report will often determine the success of your case and it may be necessary to instruct more than one type of medical expert.
In order to succeed with a medical negligence case it is necessary to prove that the standard of care that you or your loved one received fell below a reasonable standard, i.e. it amounted to negligence and that the negligence caused you or your loved one some injury, loss or damage.
It may be necessary to obtain a report on negligence from one expert and a report on the consequences of that negligence from a different type of expert.
For example, if a GP failed to refer someone with a lump which turned out to be cancer to a specialist we would need a medical report from a GP on the question of negligence and a separate report from an expert specialising in cancer to give an opinion as to whether the negligence caused any additional injury or damage. See our interactive timeline of NHS payouts over the past ten years for more examples of medical negligence.
Once the medical records have been carefully considered and reports obtained from the medical expert(s) we will advise you on your prospects of success. If the medical evidence is supportive then we would advise you to move on to the next stage which involves sending a letter of claim making a formal claim against the negligent medical practitioner or NHS Trust.
Making a Claim
During this stage your lawyer will send a letter of claim to the negligent medical practitioner or NHS Trust.
If the evidence supports your case, a letter of claim will be sent to the negligent party at the end of the initial investigation (Stage 1).
There is a code of practice, which is used in clinical negligence cases. The Pre-Action Protocol for the Resolution of Clinical Disputes encourages openness when something has “gone wrong” with a patient’s treatment. It provides general guidance and a timed sequence of steps for dealing with clinical negligence disputes.
Once health records and medical evidence have been collected during the initial investigation a detailed letter of claim can be sent to the negligent practitioner or NHS Trust. According to the Protocol, the negligent party must provide a detailed letter of response within three months.
The letter of response may admit negligence, admit part of the claim only or deny the claim. If admissions are made then it is sometimes possible to negotiate settlement of the case without the need to issue court proceedings.
Litigation Court Proceedings
This stage involves issuing court proceedings, exchanging medical reports and evidence with the opponents, settling your claim and preparing the matter for trial if necessary.
In some clinical negligence cases it is possible to resolve the dispute and settle of the case without needing to go to court, but quite often it is necessary for court proceedings to be issued.
Issuing court proceedings
Your lawyer will prepare the necessary Court documents. They will then issue proceedings at the local County Court or High Court, depending on the value of the claim.
After the proceedings are issued they are served upon the Defendants (the negligent practitioner or their solicitors), who are required to file a Court document known as a Defence setting out whether they admit all or part of the claim.
It can take between six weeks and three months for the Defendants to serve a Defence to the action. Soon after that the legal representatives on both sides complete a Questionnaire for the Court.
The Judge will consider the Questionnaire and information provided by the parties and make a Court Order setting out a timetable for the remaining steps that need to be taken in the case. Quite often, at least one Case Management Conference takes place between the legal representatives and the Judge, normally by telephone.
All cases are different but some common steps in the proceedings are:
- Exchanging statements of evidence with the opponents;
- Exchanging medical reports with the opponents;
- Dates by which to put questions to experts and receive their responses;
Very frequently medical negligence cases are resolved with settlement being negotiated after the proceedings have been issued and served but before the case ever reaches trial. Most cases settle before they ever reach trial.