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Once your solicitor has your proof, any information obtained as a result of a complaint under the NHS procedure (and the coroner’s verdict if an inquest was held), he will consider who the appropriate defendant might be. This can be complicated, particularly where you have received treatment from a number of doctors. Or if you were treated abroad by arrangement with the NHS.
If your treatment was on the NHS the potential defendant will be the NHS Trust or health authority responsible for hospital treatment. Most claims against the NHS are defended by the NHS Litigation Authority www.nhsla.com. If the defendant is your GP he, or his medical practice, will be named as defendant personally because he provides services to the NHS under contract. He will be defended by his insurer probably the Medical Protection Society or the Medical Defence Union.
If your treatment was private the defendant will normally be the individual doctor or dentist in charge of the treatment as he is not usually an employee of the clinic but merely uses the clinic's facilities. He will normally be insured against claims as would be the clinic or private hospital itself.
Your solicitor may write to each potential defendant with brief details as given in your proof, summarising why that defendant is believed to be responsible, setting out your injuries and intimating that you are proposing to claim. This "letter of claim" may ask for an explanation and, if your case appears a strong one, an invitation to settle thus avoiding issue of court proceedings. The defendant then has three months to respond to the letter.
The letter often has another purpose: to request all your relevant medical records and medical notes in the possession of the defendant, in particular the written case record. You should have been asked to give your authority for this. If the claim is in respect of a fatality the post-mortem reports will be requested. In case of difficulty or delay in extracting records from potential defendants your solicitor can, if necessary, apply to the court for an order forcing disclosure and production of records and notes. He may also write to other health carers requesting relevant medical records in their possession. If this is refused the court does have power to order disclosure although one difficulty here is the policy of certain hospitals to destroy records after a few years due to lack of storage space.
As between your solicitor and the defence legal team their actions will be dictated by the Civil Procedure Rules and in particular the Pre-Action Protocol for the Resolution of Clinical Disputes drafted by the Clinical Disputes Forum.
Once received the records are sorted, paginated, indexed and read carefully, probably using the services of a trained doctor or nurse. This can be a long, arduous task. If the defendants say that records have been lost they can be ordered to carry out a search. If your solicitor considers it appropriate you may be asked to go through the records and comment where necessary. Any difference between your proof and the records must be considered. A further statement may have to be prepared. Several copies of the file of medical records will be made for use by the medical experts and counsel.
It is no exaggeration to say that your medical expert is absolutely crucial to your case. The preferred expert would be highly qualified and experienced in the speciality which provided the medical treatment complained of. He must be willing to advise patients' advisers. He would be skilled at writing reports in good time, familiar with at least the basic principles of clinical negligence law, articulate, confident, concise and cool under cross-examination. He should always be prepared to consider the other side's view, and make concessions if necessary - judges like such a quality! Note: In the unlikely event that your case goes to trial, your expert's duty is to assist the court not to act as your advocate.
Unfortunately, medical experts – whether acting for claimants or defendants – are, as with lesser mortals, of varying standards. Every lawyer with experience of clinical negligence will know of the, initially, confident expert who gave positive opinions in his report, maintained those views at conference with the solicitor and barrister and then collapsed with a U-turn at a meeting of experts – or, worse, under cross-examination at a trial. Even the most experienced lawyers – and after the event insurers who have been left to pick up the bill - have been taken by surprise when this happens. And, incredibly, that medical expert faces no liability. He will even receive his fees which can run into thousands of pounds. This is on top of his fees as a consultant if he is not retired.
Experts, being self accredited, can easily get themselves named, for a fee, in directories of experts and other sources. Solicitors subscribing to our information services, however, have access to a constantly updated Confidential Index of Medical Experts linked with reported cases in which they have given evidence, their track record and even comments, positive or negative, by the judges. No other organisation provides such information which is why the top solicitors and barristers use our services.
Your solicitor should also have his own list of medical experts, qualified in different specialities, who have been instructed in earlier cases. Normally, unless the cases is exceptionally heavy [in potential damages] and complex you will only be permitted one expert in each speciality involved in your case. Most experienced solicitors have experts who are prepared to "screen" your case, ie, give a preliminary opinion, for a modest payment, around £250, or even over the telephone, which will at least let you and your solicitor know if you may have a viable claim.
Having found a suitable expert who is prepared to act, ensured that he has not been instructed by the defence, checked that he is not known to the doctor accused of negligence and not employed by the defendant NHS Trust, your solicitor will tell you who it is and his experience. He should also tell you of the costs involved. Subject to your agreement he will then send a letter of instruction to the expert to prepare an initial medical report. He will enclose your statement of facts, the medical notes and records and the specific questions which the solicitor wishes the expert to answer.
A top expert, in constant demand, could take over six months to consider your case and medical records. He may need to conduct a medical examination. He will then send a report to your solicitor on whether, in his opinion, (1) your medical treatment fell short of accepted practice ie was negligent, and (2) whether that negligence caused your injuries. He should refer to learned medical texts to justify his opinion ensuring that the texts were those available at the date of the accident, not necessarily the latest editions. It is important that he further states whether other responsible doctors might not agree with his opinion. He should also report on your medical condition and the prognosis because the amount of damages you might expect will, to some extent, depend on this.
It may be that your case requires the evidence of more than one expert. For example, where antenatal and/or postnatal care has been shared between a hospital (usually, requiring the opinion of a consultant obstetrician) and a general practitioner.
Subject to payment of your travel costs and loss of wages the defence have a right to have you medically examined by their own medical expert. This is to ascertain the extent of your injury - you should not be asked about the facts of your accident - and your solicitor should warn you to say as little as possible at that examination because it will probably be referred back to the defence in their expert's report. Beware: If your claim is for substantial damages and the defence believes that it is not genuine they may instruct an enquiry agent to obtain evidence, including video evidence, to discredit your claim.
What if your medical expert expresses the opinion that you do not have a case? If he is considered reliable your solicitor will probably advise you to drop the claim. You may be able to get a second opinion, particularly where your claim is high value, but it could be difficult where public funding is involved. Nevertheless, your solicitor may consider that it is worth consulting another medical expert, or a barrister, to confirm that your case is not viable.
Throughout all these steps your solicitor should keep you advised on progress in the case and tell you of any delays, for example, in getting appointments with, or reports from, experts. Once your solicitor has received and carefully read the report from the medical expert he will probably be in a position to tell you, for the first time, about the realistic prospects for your claim. He should have full knowledge of the "medical jargon" and abbreviations used by medical practitioners, explaining them to you if necessary.
If your solicitor advises you at this stage to drop the claim you could, of course, go to another firm but you do need to do some soul searching because with the expertise now required of solicitors in this field - by the Legal Aid Board and by the after-the-event insurers under conditional fee agreements - it is unlikely that your solicitor would give such advice through incompetence. But it has happened.
If your claim is prima facie good but your solicitor sees some difficulty in establishing facts or proving clinical negligence and causation he may still advise pressing on for a settlement. If you are legally aided you have a strong hand for doing this because the defence will know that, even if they win, they will recover none, or very little, of their costs from the Legal Services Commission.
Assuming that you do have a positive opinion from the medical expert, your solicitor, if he has not already done so, will now send a formal letter of claim to the defence before any court proceedings are commenced. (If there may have been a problem with your claim being late under the limitation rules your solicitor may have issued protective proceedings, ie a claim form, before this.) The defendant should acknowledge the letter of claim within 14 days and provide a detailed response within 3 months.
To conclude this database, if the case has not settled by your solicitor negotiating with the defence, she will probably now seek the opinion of counsel - a barrister:
- What is clinical negligence?
- How do you make an effective complaint?
- Where can you find an experienced clinical negligence solicitor?
- How do you finance your claim?
- What happens if your claim is litigated?
- Could you bring your claim yourself?
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