Stages of a Clinical Negligence Case

Written by Mumtaz Hussain

When you are deciding whether to instruct a solicitor after a medical procedure has gone wrong or treatment has not gone to plan, this is embarking on a clinical or medical negligence claim. This is different from a road traffic accident or injury at work claim because it involves a decline in the expected standard of care extended to you by a medical professional, which has directly caused you physical or mental injury. In deciding whether to make a claim, often the first question is “Has there been negligence?”

You, the client will not necessarily use that language, because it is technical and legally jargonistic. You are more likely to ask “Did someone make a mistake, and have I suffered as a result?”

Choosing Your Solicitor

If the answer is “Yes” then this is the point at which a potential client will have to explore the multitude of law firms offering to help navigate the legal process of bringing an action against the party allegedly at fault. Do not be in any doubt – this specialist sector of the law is not about searching for the easy wins. The sector has its own pre-action protocol, familiarity with which is essential, as is familiarity of the Civil Procedure Rules. It is a highly complex area of law and there are nuances and specific characteristics, sometimes hidden in the minutiae of the sheer volume of data solicitors must work through during the investigation process. These nuances will often only be noticed by the expert lawyers in the top firms who deal with this type of claim in a daily basis.

Identifying the Issues

Occasionally some of the issues to be determined, and ultimately resolved, will not be entirely obvious from the outset. Identifying the responsible party (“the defendant”) for instance can be a lengthy process, and accuracy here is pivotal to the overall success or otherwise of the case.

As the client who is often unfamiliar with the legalities of bringing a claim, you will need to feel confident that your solicitor knows which elements of the law to consider. At the early review stages of your case, one of the key questions your solicitor will ask is whether you were fully appraised of the risks and consequences of the surgery or procedure. At this stage, when it comes to applying case law, your legal advisor will consider, for example, whether to apply Bolam [2]or Montgomery[3]. As the client and the innocently injured party, you do not need to be aware of the specifics of the law or the cases that have been decided by the courts and how they apply to your specific set of circumstances. You do however need to be confident that your legal team is fully up to speed on this and all other aspects of bringing your claim to a conclusion that you are happy with. Have they represented other clients successfully? One way of satisfying yourself on this point is to look at what their former clients say about them.

Investigating Your Claim

Inherent complexities within the claims environment, combined with the unique intricacies within different sets of circumstances, mean that no two cases are the same and therefore time scales for progressing to a final decision can vary enormously. Moreover, cases can take many months and, in some cases, even years to settle not least because the research and evidence gathering stages can involve obtaining opinions and organising treatments from several experts on both sides. There will be various expert witnesses preparing detailed reports. Barristers can also be involved to review and provide expert opinions on the validity and relevance of those reports, and likewise on any of the independent witness statements and pieces of evidence that may have been obtained to support or rebut your claim. Interspersed with these challenging aspects of your case, there will be various court hearings and stages of judicial intervention.

Before any of this can happen however, your solicitor will discuss with you how your claim is to be funded. There may be an existing insurance policy which will cover your legal expenses, and if not then new “after the event” insurance policies can be taken out to cover your legal costs. This is another complex aspect of the claim and must be resolved before matters can progress.

Progressing to a Final Decision

Contrary to popular belief the final stage is not always a trial at court. Often matters are agreed between the parties in phases along the way, and the conclusion is reached on a stage-by-stage basis. From the outset, lawyers are encouraged to resolve matters by negotiation and narrowing the issues. This is because trials are costly, and the overriding objective is to keep legal costs to a minimum, with the risk of costs sanctions being imposed on parties who do not co-operate to resolve matters pre-trial.

If, however the claim has unresolved aspects which cannot be settled between the parties, then those matters will form the basis of a final hearing before a judge who will make a decision based on the evidence presented to them by your legal team and the opposing legal team.

The overall process when bringing a claim for medical negligence is undeniably lengthy and complex, and this is not because it is designed to frustrate any part of the procedure, but instead to ensure that all the issues and options for resolution have been considered in a balanced and equitable manner, by independent and neutral experts, where the outcome is the best possible conclusion for you, the client.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.

[2] Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582 (26 February 1957)

[3] Montgomery v Lanarkshire Health Board [2015] UKSC 11