Will I need to go to a trial if I bring a clinical negligence claim?

If you or anyone you know has been seriously injured as a result of the actions of a medical professional, and are considering making a medical negligence claim, you may be apprehensive about the possibility of having to attend a trial.

Whilst some claims do only resolve at trial, it is worth noting that recent data suggests it is increasingly common for clinical claims to resolve through settlement without the need for a trial ever to take place. Hopefully this news will be reassuring, however I would encourage claimants not to be anxious about the prospect of bringing their claims to trial if that is what your solicitor has advised is necessary to obtain fair compensation.

Positive trends in dispute resolution

NHS Resolution’s annual report is an excellent resource for understanding how clinical negligence claims are handled throughout the year. NHS Resolution is the body responsible for managing claims on behalf of the NHS. Its report provides a wealth of facts and figures about clinical claims against the NHS, which represent the vast majority of all clinical claims brought every year (although of course there are also many legal claims brought annually against private medical practitioners who have negligently left patients with catastrophic injuries).

The report for 2022-2023 suggests that the positive trends we have seen in litigation since the pandemic have continued. In particular, in the past year 80% of claims against the NHS resolved without the need for court proceedings to be issued. This is a record high. It continues a trend over the past six years of gradual increase in the number of claims resolving without any court involvement.

Furthermore, the report relays that last year only 26 clinical negligence claims against the NHS ended up going to trial. That is a tiny 0.19% of the total clinical claims concluded against the NHS in 2022-2023.

Every case is fact specific. However, the broad conclusion to be drawn is clear; on average a claim against the NHS is unlikely to need to be resolved at trial. It is much more likely to conclude by a negotiated settlement, mediation or some other form of dispute resolution (with just over 50% of clinical claims resolving in this way with payments of damages to claimants in 2022-2023).

Will these trends continue? Given the changeable nature of the clinical negligence sector at the moment, it is difficult to know, but I certainly hope that they do. Litigation, even in those cases involving life changing injuries, ought to be a last resort. The court’s pre-action protocol rightly encourages parties to attempt settlement by negotiation or some other form of alternative dispute resolution at every stage in the proceedings. Aside from anything else, resolving claims without trial generally means claimants can access the compensation they need with less of the delay that unfortunately comes as part and parcel of the court system.

What if I do need to go trial?

Whilst there are often advantages to resolving a claim without a trial, I would not want to give the impression that a trial is necessarily a bad outcome or something for claimants to be afraid of. In fact, in situations where a defendant has failed to consider a claimant’s case properly (which happens rather too often in my experience), it can be reassuring to remember that ultimately a claim can be determined by a judge who will look carefully at all the evidence and will be under a strict legal obligation to do justice to it.

If you make a claim that goes to court, you should be supported every step of the way through that process by your legal representatives. Our clinical negligence team is extremely experienced in handling a wide variety of life changing injury claims, both in the pre-issue stage, and at trial at court. If you believe you have suffered an injury through poor medical care please do not hesitate to contact us to discuss whether we may be able to assist you in making a claim.