"What do Clinical Negligence lawyers do?"

Key Facts...

Clinical negligence is often referred to as 'medical' negligence law. It is an area of law designed to protect both medical patients and medical providers (such as doctors, nurses, psychiatrists etc). 

Clinical negligence law arises when there has been an accusation of negligence on the part of a medical provider. In most cases, this negligence has resulted in medical issues or life long injuries to patients of that treatment. 

This is a contentious area of law. (There is a dispute between the two sides as to who is right and who is wrong.) 

A lawyer will act on behalf of the claimant (the patient) and another lawyer will act on behalf of the defendant (the medical provider such as the NHS). The ultimate aim of the claimant is to get the defendant to admit that they were wrong in the treatment that they provided (so admit 'liability') and get financial compensation.

The claimant needs to establish two things to have a successful clinical negligence case: 

1. that, on a balance of probabilities, the treatment they received did not comply with medically acceptable standards; and

2. the 'negligent' treatment directly caused the injury suffered by the claimant. 

Most law firms that have this specialism either specialise in defendant claims or claimant claims - very rarely do law firms do both. 

Typical clinical negligence case

Typically, a clinical negligence case will involve the following steps: 

Step 1:

Claimant approaches law firm for advice - explains the situation, the treatment they received and the injury they have suffered. This initial chat will usually be over the phone. The law firm will consider the information received and decide whether they will take on the case. 

If the firm takes on the case: 

Step 2: 

The law firm will do the relevant risk and engagement work to officially act on behalf of the claimant. Once this is out the way, they will ask the claimant for more information. The law firm will also request the medical records of the claimant from any hospital the claimant has attended and the claimant's GP. The law firm will also request medical records from the potential defendant practice too (i.e. the hospital where the claimant is alleging the negligent treatment took place). 

Step 3: 

If the law firm thinks that the claimant's medical records support their claim, they will instruct a specialist medical expert to provide an opinion on whether the treatment received was 'substandard' and whether it caused the claimant's injury (they may assess the claimant to do this too). Multiple experts may be instructed depending on the type of injury/claim. The law firm will also obtain witness evidence too and prepare witness statements. 

Step 4: 

If the medical experts' opinion supports the claim, the law firm will draft a formal 'letter of claim' to the 'defendant' responsible for the treatment. This letter will set out all the details around treatment, the allegations being made and the injuries and loss the claimant has suffered. 

The defendant has 4 months to investigate the claim and respond with a formal 'letter of response'. This letter will set out the details of the treatment provided and may contain an admission or denial of liability. 

Step 5 - if the defendant admits 'liability':

  • the law firm will arrange for the claimant to be assessed by a medical expert who provides a formal report on the claimant's 'Condition and Prognosis'; 

  • the firm will look at what past treatment has been had and what future treatment and requirements the claimant will need to deal with the condition - this helps towards valuing the claimant's claim;

  • if more treatment is required to be absolutely certain of future treatment/requirements of the claimant, the law firm may request an 'interim payment' from the defendant to fund that treatment; and

  • once in a position to value the claim, the law firm will make a formal offer to settle the claim with the defendant by suggesting a sum of money and the defendant can either accept or counter offer (until eventually a final sum is agreed). 

Step 6 - if the defendant denies liability or a financial figure cannot be agreed between the claimant and defendant - court proceedings may be issued. This involves the following documents: 

  • Claim Form - this is a formal document setting out brief details about the claim - the court will be asked to seal or 'issue' this document which signifies the issue of proceedings. 

Once the Claim Form has been issued, the claimant law firm has 4 months to serve the following documents on the defendant:

  • The Particulars of Claim - a formal document that sets out specific details of the claim in as much detail as possible and the negligence alleged and injuries sustained as a result (reference will be made to the Condition and Prognosis report); 

  • Medical Report - an expert report from a medical expert setting out the Condition and Prognosis; and

  • Schedule of Loss - a formal document setting out details of past and future loss of the claimant and expenses incurred as a result of the injuries. 

From the 'effective date of service', the defendant has 14 days to serve an 'Acknowledgement of Service' indicating whether they intend to defend the claim. The defendant then has a further 14 days to serve a full 'Defence'. 

The 'Defence' will respond paragraph by paragraph to the Particulars of Claim with admission or denial of liability. If no Defence is filed, 'judgement' can be entered against the defendant and the court orders the claimant's compensation to be assessed. 

Step 7 - once Defence is served the court will list a 'Case Management Conference' which will determine the timetable of steps to be completed by both defendant and claimant.

 

These steps include:

  • disclosure of relevant documents

  • exchange of witness statements

  • exchange of expert reports 

The court will also list the case for trial. 

During the whole process the claimant and defendant will try to settle the claim to avoid having to go to trial and generally cases are settled out of court. 

Typical tasks of an Clinical Negligence lawyer...

Typical tasks of a clinical negligence lawyer include: 

  • advising clients on the merits of their claim

  • obtaining evidence  - both witness evidence and expert evidence 

  • drafting witness statements following interviews with witnesses 

  • liaising with experts and reviewing the expert reports 

  • arranging and managing conferences with 'counsel' ('counsel' is the barrister you are using to help you with the case) and the expert where you all group together to discuss the client's case (the client may also be present)

  • issuing proceedings / defending proceedings 

  • drafting papers for court such as the claim form, particulars of claim, defence etc. 

  • reading psychological or psychiatric reports

  • reviewing medical records and reports - when you request medical records from the GP/hospitals for clients, there are usually hundreds of documents to go through (this is a typical trainee task in the seat!)

  • attending court to file claims and attend hearings 

  • lots of client contact both over the phone/email and face to face - clinical negligence lawyers need to be compassionate and understanding as their clients are going through a very difficult time. 

Skills to be a Clinical Negligence Lawyer

  • well organised and prioritises competing deadlines 

  • ability to work under pressure 

  • great attention to detail 

  • ability to think on your feet and be proactive 

  • compassionate - the ability to build good relationships with people and manage people during difficult times

  • interest in the litigation process and attending court and liaising lots with barristers 

  • ability to read lots of medical information and terms and translate what you've read into concise and simple language