The Litigation Series – Week 1 – Your Medical Negligence Claim: What To Expect in Your First Meeting

The meeting will usually take place after we have agreed that there looks to be a case to investigate (this assessment may be based on your account alone, or on review of documentation such as complaint correspondence and internal or external investigations), and has several purposes:

• for you to meet your solicitor (either in person, or remotely if appropriate)
• to discuss your concerns in more detail, and to listen to your account of events for the purposes of preparing a witness statement
• for your solicitor to provide you with general information about medical negligence claims, including what must be proved, the role of expert evidence, the potential damages available and the relevant time limits in bringing claims.
• to explain funding options
• to discuss next steps and to set out estimated timescales.

Proving medical negligence claims

To be successful in a claim, it must be proved that:

1. A duty of care is owed: in medical negligence claims – which can include claims against any health care professional, not just doctors – demonstrating this is normally quite straightforward;
2. There has been a breach of that duty of care;
3. The breach of duty caused (or materially contributed to) an injury.
4. The burden of proof is on the person making the claim. If breach of duty is established it must be proved that the breach of duty is what caused or materially contributed to the injury, on the balance of probabilities (i.e. more likely than not, or greater than 50%).

The role of expert evidence

To establish breach of duty the Courts will look to see whether the standard of care provided was in accordance with a responsible body of medical (or other healthcare professional) opinion, as long as this withstands logical scrutiny. It is essentially a matter of healthcare professional opinion (with an element of judicial oversight), so a Claimant will need to instruct an expert in the relevant field to give their opinion as to whether the care given fell below the standard required. The standard required is not necessarily the very best that could be expected, it must simply be in accordance with a responsible body of opinion. Experts are required to comment on causation, and they also have a role in assessing condition and prognosis (relevant when assessing damages: see below).

Damages available

If your medical negligence claim is successful you will be awarded damages to compensate for your injuries, and put you back in the position you would have been but for the injuries (as far as is possible). Damages include:

• General damages – awarded for the injury itself, based on awards in previous cases and judicial guidelines
• Special damages – for losses and expenses arising from the injury. These are specific to each individual and can include past and future loss of earnings, travel expenses, private treatment, prescriptions, care and other expenses.

Funding options

There are four potential ways of funding your medical negligence claim:

1. Privately (i.e. paying yourself): this can be expensive and we understand most people will not have the means to fund their own case
2. Legal Aid: this is no longer generally available for medical negligence claims. There is some limited funding available for certain cases, for example, if a child has suffered a birth injury.
3. Before the Event (‘BTE’) insurance: you may have legal cover already in place as part of your house (or even car) insurance which can be used to help you fund your medical negligence claim
4. Conditional Fee Agreement (‘CFA’), also known as a ‘no win no fee agreement’. Most cases are funded this way, if the above options are not available.

Limitation

It should be noted that a person must bring a clinical negligence claim within 3 years of the injury.  You must issue a claim form at court the day before or the last working day before the third anniversary of the date of the injury.  In certain circumstances the 3 years does not run until a claimant has “knowledge” of the incident, a complex legal issue.  You must assume that the limitation period in your case runs from the date of the injury unless you have been otherwise advised.  If you do not start proceedings within 3 years of the date of the injury (or your “date of knowledge”, if later) you will be statute barred (prevented in law) from proceeding with your claim.

If the negligence occurred when the patient was a child/minor, then the three limitation period will commence from the date of their 18^th birthday. In some cases, where the Claimant does not have mental capacity, the limitation date may not apply.

Next steps

Once you have decided you wish to proceed, and funding arrangements are in place, investigations can begin. First steps are usually to obtain and review relevant medical records and other documentation and to plan next steps on the basis of this review. Each case varies in the best available option to progress a claim, and at all times you will be advised and involved in the decision making and likely timescales for each step.

If you are concerned you have experienced medical negligence you may be entitled to a compensation. For a free initial consultation with one of our medical negligence team please call 0330 822 3451 or request a call back online.