Why do you need "counsel"?
What happens at a conference?
Assuming that your case is not simple and low in value, in which case your solicitor may run the case himself to conclusion, the next important step in your case is when your solicitor sends the expert's report (or experts’ reports: you may need to have opinions from a number of specialities relevant to your case), with your medical records, notes and relevant correspondence, to counsel, a barrister experienced in medical negligence cases, usually in a set of chambers (counsel’s offices) specialising in this field.
Unfortunately there is no system of compulsory assessment for barristers as there is for panel solicitors. Your claim is likely to suffer if your solicitor instructs a barrister who has little experience of, or a poor track record in, handling clinical negligence cases. Solicitors subscribing to our information services have access to a constantly updated Confidential Index of Counsel, with hyperlinks to reported cases in which they have been instructed, and their track record. No other organisation provides such information which is why the top solicitors use our services.
Counsel will be asked to consider your claim and advise. An experienced barrister, having argued many cases in court, knows what can go wrong. His knowledge equips him to give an opinion on the sufficiency of the evidence and the medical and legal issues which arise in your case. Once he has considered the papers there will probably be a conference attended by you, your solicitor and probably your medical expert. This can be difficult to synchronise – most of the professionals involved being very busy people. If necessary, if you are incapacitated say, the conference may be convened at a place more convenient to you – or even conducted by videolink.
The purpose of the conference is to assess your claim, consider all the issues which arise, test the expert and other evidence in the case - including your own ability as a witness -, decide whether further evidence is required and make a frank and careful risk assessment. Either counsel or your solicitor may have drafted a statement of your case and that will be circulated.
Meeting of experts
Under the Civil Procedure Rules the court may have ordered the medical experts on both sides – claimant and defence - to meet and discuss the case, narrowing down the issues, usually with the assistance of questions posed by the parties’ lawyers. The experts may be ordered to report on the meeting identifying where they agree and where they disagree, with reasons. There can be problems with these meetings, for example, medical experts might be persuaded, by the views of more eminent experts on the other side, to modify their opinion. One might say: “Well, better that than changing their view at court under cross-examination.”
True. But the about-turn expert will still collect his or her – not inconsiderable - fees. Are there medical experts who are prepared to give a favourable opinion to boost their income, and rapidly capitulate before they have to justify that opinion in open court? In Adeshina v King's Healthcare NHS Trust MLC 0141 Mr Justice Eady said of one expert: "I fail to see how such serious allegations [of a labour ward medical team] were permitted to be placed before court so casually and on such flimsy foundation." We are the only organisation providing such information. This is another reason for consulting the experienced solicitors on this website. Word on medical experts’ behaviour soon gets round this elite group of leaders.
Counsel will test your medical expert(s) who will be expected to specify every negligent act or omission which they are prepared to support in evidence. At the conclusion of the conference the experts may have to consider revising their initial reports.
Decided cases
If there are any legal issues involved counsel will need to consider principles laid down in previous decided cases.
Counsel may give his views at the end of the conference, but normally he will be asked for a written opinion which will take about 30 days.
Your claim’s prospects
Once counsel's opinion is received your solicitor will be in a position finally to advise you on your claim's prospects. If he advises that it is hopeless and should be dropped, despite your emotional feelings it would, on balance, be prudent to accept that advice. Experienced legal and medical professionals have now considered all the aspects and reached this conclusion. Remember, a clinical negligence claim may appear very strong but if it depends on medical evidence. Nobody can forecast the result once it gets into court.
If you are receiving public funding through the Community Legal Service that support will probably be stopped if you decide to carry on. If your solicitor is acting under a CFA it will contain a term permitting him to withdraw.
Those who have suffered in medical accidents regularly contact us saying that they have a valid claim, that they should be compensated for a doctor’s negligence. They ask: Should they sue their solicitor for not proceeding with the claim? It is difficult to counsel these, often emotionally distressed, people. Yes, we can suggest obtaining a second opinion from another solicitor. But there comes a time when one must get on with the healing process which time usually provides. Only you know when you have reached that stage.
If your claim is weak but high value, for example, a brain-damaged baby, your solicitor may suggest working towards a reasonable settlement. In the past, when defendants – or more usually, their insurers - defended many claims bitterly with heavy tactics sometimes adopted on both sides, such offers were not readily forthcoming.
NHS Litigation Authority
These days the NHS Litigation Authority, the body concerned with most clinical negligence litigation against the NHS, has said that it will settle justified claims "efficiently" - an encouraging, but not altogether unambiguous, statement. It will be your solicitor's task to make an experienced risk assessment and attempt, by negotiation, to obtain the best settlement possible.
If your case is so strong that the other side do not contest liability it will be a question of your solicitor's negotiating skills and experience being applied to the assessment of damages and the eventual size of the settlement. If the defence seem determined to fight your solicitor will probably want to see what evidence they have before entering into any settlement negotiations. He must keep you informed on all offers he receives because the claim belongs to you not to the solicitor.
There has been considerable concern about the size of damages awards to cerebral palsy cases – the highest recent case being an incredible £12 million. In fact, although cerebral palsy cases account for only 5% of all cases of medical litigation, in total damages paid such cases account for 60% of all NHS expenditure on medical litigation. The Chief Medical Officer’s consultation paper Making Amends proposed that there should be a separate component for brain-damaged babies in the NHS Redress Scheme, periodical payments should be made for future care costs and such costs should not reflect the costs of private treatment. That recommendation appears to have been quietly dropped.
If your claim is substantial, and the defence have admitted liability, your solicitor may apply for a payment on account for money you need.
Bear in mind the delays which are inevitable in progressing a clinical negligence case. You will be advised by busy professional people who will each require time to consider your case carefully and advise you properly. Where the defence seems intent on a battle of attrition, unlikely in the present climate, the worry of appearing in court and undergoing cross-examination may make you keen to settle, even where the defence offer is inadequate. If you are to obtain adequate compensation you must be guided by your solicitor and counsel.
Mediation
If your claim is small and you are really looking for an apology and perhaps, some comparatively small sum, your solicitor may advise you to seek an informal hearing, attended by defence representatives, before a mediator. In fact, this procedure may be directed by a judge under his case management powers in the Civil Procedure Rules. In mediation the hearing is conducted in private without the adversarial approach used in court. One might think that this type of dispute resolution could serve a valuable role in clinical negligence disputes, which, understandably, tend to be emotional in nature, but for some reason this procedure does not appear to have been generally taken up in this field.