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Clinical negligence claims are often complex and difficult to handle, not because the law is particularly complicated – few of these cases involve legal issues - but because the clinical aspects, which will depend on the evidence of medical experts backed up with learned texts and papers, may require extensive research and study. No clinical negligence case can be guaranteed to succeed in court.
Fortunately, few clinical negligence cases ever get to court but they should always be handled by an experienced solicitor who has passed a rigorous assessment of his or her experience and skills. Many cases have been lost – sometimes with clients’ and public money squandered - because non-specialists have been instructed who were unaware of the many pitfalls in this field.
All these firms have a record of success in handling clinical negligence litigation.
As we shall explain later on this website [How is your claim investigated] [Why do you need "counsel"] it is vital that your solicitor has access to
(a) a cases database with all significant reported court judgments on clinical issues;
(b) a constantly updated list of top quality medical experts, each with extensive knowledge of his or her own specialism and with a successful track record of advising and testifying in clinical negligence litigation. It is the medical expert who will consider your claim and its documentation. He or she will advise on whether there is proof of negligence and causation (ie, whether the negligence caused or materially contributed to your injury). In the event of the case going to trial your expert(s) will probably have to give evidence to guide the court, under rigorous cross-examination by counsel (the barrister) for the defence;
(c) counsel (barristers) of proven experience – and with a good track record - to advise on your claim, represent you in negotiations with the NHS’s legal team and, if the case does go to trial, argue your case in court.
Only Medical Litigation Online has the extensive databases providing this information, which is why leading clinical negligence practitioners acting for claimants subscribe to our services. Those firms are shown on the map of the United Kingdom on our home page and can be quickly accessed by clicking on the coloured area most convenient geographically to you - although most firms will send a representative to you if necessary. These firms have provided further information which could guide you in making a choice.
When you contact the firm ask for the contact given on our website or the Clinical Negligence Department. Say that you want advice on a possible clinical negligence claim, giving brief details of what happened. If you are disabled and unable to travel or use stairs tell them so - solicitors are prepared to travel in most circumstances - and ask how much an initial interview will cost you if it is not free. If you are dissatisfied with the initial contact e-mail us editor@medneg.com so that we can record your comments about the firm.
Some solicitors may be considering not so much whether your claim is worth taking on but whether they want to do business with you. They may be mindful of the comment of Lord Justice Buxton on the litigant in Cornelius v de Taranto MLC 0218, (Court of Appeal: December 18, 2000):
“ … the claimant … has pursued the litigation with unbending determination. At stages she has had to prosecute her claim as a litigant in person. It is a manifestation of her psychological make-up that her determination to right the wrongs, as she sees them, done to her has become obsessional with the result that she approaches many aspects of the case with a lack of balance, realism and objectivity. Her obsessional attitude makes it difficult for her to distinguish between right and wrong and truth and falsehood. She is unable to accept in fairness to the defendant that her [the defendant’s] mistake was well-meaning and not malevolent.”
At your first interview take all the information and evidence you have and a concise written statement, stating chronologically, in your own words, all relevant events, with dates, before and after the accident, the names of any health carers and other witnesses. Your solicitor also needs to check whether you already have legal expenses insurance perhaps in your householders, motor or legal liability insurance policies. Does it cover claims for medical negligence? What are the terms? Do you belong to a union which provides legal expenses cover for its members? Take your policies along to your solicitor and have them checked.
The interview will take about an hour. You should be made to feel welcome and put at your ease but your solicitor is unlikely to advise whether you have a valid claim until it has been initially investigated. He or she should, however, be able to tell you whether it is worth investigating further. You should be warned of the difficulties, for example the need for a medical expert or experts, the law, the costs, the likelihood that the claim may not be resolved for anything up to four years – possibly longer.
If your injury is not serious he or she should ask you what you want to achieve. If you are worried about making a complaint against a doctor who is still treating you the solicitor can advise on your options.
An experienced solicitor may, and if you do not qualify for state funding, probably will, advise you to use the NHS Complaints Procedure before reaching a decision on litigating your claim. This is because the cost of obtaining even an initial expert medical opinion on your case may be high (£250 to £750) but an independent review panel report - and all the documents prepared for the panel - will cost you nothing.
Remember: the NHS Trust is entitled to refuse any complaint if it suspects that you intend to sue. In fact some NHS Trusts require you to sign a declaration that you do not intend to sue after complaining. Your solicitor will have the experience to advise on the particular circumstances of your case.
After hearing your story, and questioning you to ensure that he or she has a clear picture, your solicitor will take a written proof which will state every detail you can remember. You can now see the value of any notes you made before, during and after the time of your medical treatment. Your solicitor will need to know, with dates and places,
- why you sought medical treatment in the first place and whether you had any earlier relevant medical problems;
- the names of all doctors and other health carers involved, including doctors before and after the treatment complained of;
- what the doctors asked you, what diagnosis was made, the advice you received and what treatment was prescribed;
- whether you were given any explanation of the treatment, warning of the risks involved, advice on alternative methods of treatment and information on the likely outcome if you did not receive the treatment;
- the names of all relevant witnesses, whether to the consultation, treatment or relatives you told about the treatment;
- what was said at any later medical consultation;
- whether you have made any complaint either through the NHS procedures or to the doctor concerned.
It may take time but it is essential that your proof is as full and accurate as possible. Every experienced clinical negligence solicitor can tell of cases taken on because they appeared good initially but later collapsed, even as late as at the trial itself, because the client had forgotten, failed to produce, or had a poor memory of a vital piece of evidence. The proof will also be the basis of future documents used in your case.
Your solicitor will advise you on how the claim should be funded. If the firm is on one of the clinical negligence panels he or she may be in a position to apply for public funding if your financial situation entitles you to do so. This may be applied for at once. If you do not qualify for legal aid you may be asked for funds to meet the firm's disbursements, the medical expert's fees and other initial costs. But the leading firms have facilities in place to assist in meeting these costs.
Some solicitors, if they have long experience of clinical negligence work, may, at this stage, offer to act for you on a conditional fee agreement (CFA) (also referred to as “no win, no fee”) which you will be asked to sign. More information is provided on our fourth database "How do you finance your claim". The solicitor is obliged to explain the CFA in a way which you can understand. If you have no existing legal expenses insurance he will also advise on how insurance – termed “after the event insurance” (AEI) - can be taken out to cover the legal costs of the NHS or general practitioner if your claim should fail. Most leading firms have access to funding facilities through banks and/or insurance providers.
If a death occurs in certain specific circumstances, such as (a) accidentally, violently, unnaturally, suddenly or by unknown causes (eg, during an operation or under or prior to complete recovery from an anaesthetic or arising subsequently out of an incident during an operation or an anaesthetic), or (b) in a prison, or (c) certain industrial cases, the district coroner must hold an inquest.
The purpose of the inquest is to discover who the deceased was and when, where and how the death occurred. The coroner, who is usually medically and/or legally qualified, is not empowered to find any individual person negligent.
If you are claiming as a parent or dependant of a deceased person your solicitor may discuss attending the inquest on your behalf because he or she would then have the opportunity of learning more about what happened from the doctors' evidence - and, indeed, see how they present their testimony. Although legal aid is not available for this work if you do win your case most of the costs of your solicitor attending the inquest will be paid by the defence, although probably not the costs of any medical expert acting for you.
If the solicitor advises that you have no case, ask for the reasons to be put in writing. Since the firm would not be on the clinical negligence panel if its personnel were not assessed as competent and experienced it would probably be wise to accept the advice – quite frankly, the vast majority of clinical negligence claims are not viable. But if you feel strongly that you do have a good case you could go to another firm for a second opinion.
- What is clinical negligence?
- How do you make an effective complaint?
- How do you finance your claim?
- How is your claim investigated?
- What happens if your claim is litigated?
- Could you bring your claim yourself?
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