- March 3, 2016
- By Ali Malsher
- 0 comments
Claiming against solicitors for failed clinical negligence claims
Clinical negligence claims are notoriously difficult to establish. This is partly because there are complications and side effects of all medical procedures even where the care is exemplary. Claims also fail because medical practitioners are needed to criticise care or establish harm and sometimes the care is not brilliant but average; sometimes the harm is not common but nonetheless a recognised complication which occurs without negligence.
The vast majority of experienced clinical negligence solicitors take on perhaps 10% of cases they review and perhaps only 50% of those go further than an initial report or two. The rate of take up is small and always has been.
What happens if your claim however is one of those which beats the odds, goes forward, but either doesn’t succeed or the compensation is lower than expected?
There are certain things you should expect and receive from an experienced clinical negligence solicitor. The records should be obtained, sorted, paginated and reviewed. The proper areas of concerns should be identified. You may consider the nursing care poor and indeed it may be, but if the issue is that the choice of surgical procedure was incorrect, the nursing care is less important.
An expert, if instructed, should be an expert reporting either on the care you received or the harm caused depending initially on which is likely to be the more difficult to establish. There is no point asking a GP expert to report on an orthopaedic procedure. There is no point asking the whiplash expert to report on spinal damage.
If, as is sometimes the case, evidence is not supportive a conference with the experts and a barrister may be required. If your barrister is very junior or is an expert at criminal procedure or family law, he or she may not be the correct person to take a medical expert report to pieces. Barristers specialise, as do solicitors.
Or perhaps you find your solicitor wrote a letter to the trust with details of your case and the trust denied liability. If your solicitor just accepts what has been said then that doesn’t indicate reasonable practice. However if your solicitor advised you at the outset you had no chance but they would write a letter just on the off chance then the situation is different.
If having reviewed all that, you find your solicitor instructed a general surgeon to report on a knee operation, or a commercial barrister just qualified to deal with your clinical negligence case you might have good reason to consider you haven’t received the best of legal assistance. However just because your expert is the wrong speciality or your barrister is inexperienced does not mean in the end they got it wrong. It is more likely but it is not guaranteed.
If all goes wrong what do you do?
You can always consider a claim for negligence against the solicitor but it becomes a more complicated procedure. You need to establish firstly that the original claim should have succeeded or had a different result and secondly that your solicitor, had they acted as a reasonable clinical negligence solicitor, would have secured a better result for you.
In short, you have to establish the medical negligence and the legal negligence. This makes it more complex. However there are some natural advantages – the former solicitor should have obtained the medical records, should have instructed an expert, may have consulted a barrister for advice and should have detailed notes of evidence. This means that once a file is transferred, the review is not usually delayed. Of course that depends on the solicitor transferring the file in reasonable time.
Secondly some of the evidence will have been considered. The issues may well have been identified. Missing records may have been chased and located. All of these take considerable time for a clinical negligence practitioner so to have some of it done (even if it has to be re-reviewed) can save time.
On the downside is the fact that even if successful you will not receive the full amount of compensation as there is a deduction for the risk that the clinical negligence claim would have failed even with competent representation. This can reduce your compensation by 25% in some cases. In a smaller value case you need to think, as does your solicitor, whether it is worth taking forward. In a higher value case it can still be worthwhile.
However instructing a solicitor to handle a solicitors negligence claim concerning a clinical negligence case is difficult. Many solicitors don’t have the expertise to comment on what a reasonable solicitor would do in such a case. You need a clinical negligence specialist to comment on the standard of service in a clinical negligence case.
Increasingly as legal aid is now abolished save for very few cases and inexperienced solicitors move in, there is a change in those who do the work. Some such solicitors regardless are excellent but some are less competent, because they believe that a clinical negligence claim is the same as a personal injury case or because they don’t have sufficient time to work on the file. Some of those cases will be mishandled. The fact they fail is not necessarily the end of the line but the process to succeed does becomes significantly more difficult.