What happens if your claim is litigated?
If your clinical negligence solicitor, having evaluated your records and the report written by a medical expert, feels that there is a reasonably strong chance of your claim being successful then they will begin a process which, in a small percentage of cases, will end in a court case. Many people are reluctant to launch a claim of this kind because they are, fairly naturally, somewhat daunted by the thought of appearing in a court. Indeed, clinical negligence cases, bringing together the worlds of medicine and the law, represent some of the most complex personal injury cases of all, particularly as far as the claimant is concerned.
If you’ve been treated negligently by a clinician in whom you placed a huge degree of trust, however, and this treatment has left you injured or unwell, then you have every right to seek compensation, safe in the knowledge that a criminal negligence solicitor will be just one part of a team there to guide you every step of the way.
Chances of appearing in court
Although your behaviour throughout the process – particularly with regard to the statements you make describing your treatment – should be made with the expectation that you may eventually have to attest to the truth of such matters under oath in a court of law, the fact is that very few clinical negligence cases ever make it that far. The independent body which exists solely to deal with claims made against the NHS, the NHS Litigation Authority (NHSLA), states that 98% of the claims which it deals with are settled before reaching court, either because a settlement has been reached or the claim has been dropped.
If your claim does reach court, therefore, it will be because your solicitor feels that they can prove negligence or that any settlement which has already been offered is insufficient to reflect the extent and severity of your injury. Even then, this will mark the end of what is often an extremely long process beginning, as detailed elsewhere, with your solicitor writing to the defendant to outline the details of your case and request access to your medical records.
The process of launching a claim has to follow a strict programme of conduct set out in the UK Court Rules. As stated in the rules themselves, this protocol is designed to ensure that ‘each party to a clinical dispute has sufficient information and understanding of the other’s perspective and case to be able to investigate a claim efficiently and, where appropriate, to resolve it. This Protocol encourages a cards-on-the-table approach when something has gone wrong with a claimant’s treatment or the claimant is dissatisfied with that treatment and/or the outcome.’
Indeed, the pre-action protocol, as laid down in the rules, is explicitly designed to minimise the chances of legislation actually being necessary. It is also intended to make it easier for healthcare providers to recognise and investigate where problems have occurred and to treat the claimant in an honest and transparent manner. Besides a general aim to resolve as many disputes as possible without litigation, the protocol sets out specific objectives such as:
(a) to encourage openness, transparency and early communication of the perceived problem between patients and healthcare providers;
(b) to provide an opportunity for healthcare providers to identify whether notification of a notifiable safety incident has been, or should be, sent to the claimant in accordance with the duty of candour imposed by section 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014;
(c) to ensure that sufficient medical and other information is disclosed promptly by both parties to enable each to understand the other’s perspective and case, and to encourage early resolution or a narrowing of the issues in dispute;
(g) to enable the parties to explore the use of mediation or to narrow the issues in dispute before proceedings are commenced;
(h) to enable parties to identify any issues that may require a separate or preliminary hearing, such as a dispute as to limitation;
(i) to support the efficient management of proceedings where litigation cannot be avoided;
(j) to discourage the prolonged pursuit of unmeritorious claims and the prolonged defence of meritorious claims;
(k) to promote the provision of medical or rehabilitation treatment to address the needs of the claimant at the earliest opportunity; and
(l) to encourage the defendant to make an early apology to the claimant if appropriate.
In short, the protocol sets out a framework intended to make a complex and stressful process as simple as it possibly can be, to discourage unwarranted claims or denials of negligence, to ensure that all the relevant facts are shared at the earliest possible stage and to avoid costly, lengthy and stressful litigation wherever possible.
The pre-action protocol demands that the process before a trial begins with a letter sent on your behalf, by your solicitor, to the defendant, outlining the basis of the claim and requesting access to medical records. According to section 7 of the Data Protection Act 1998, you have a right to request such access and to have the records in question provided within 40 days.
Once these records have been examined by a medical expert and the decision to proceed with the case has been taken, your solicitor will send the defendant a letter of claim. This letter will clearly set out a summary of the negligence being alleged, the general details of the case, a description of the injury sustained and details of any financial losses incurred, such as loss of earnings, money spent for medical help etc. The defendant will have to acknowledge receipt of this letter within 14 days and give a detailed response within four months.
This response will take the form of one of the following:
- A full denial of the claim, or…
- Admitting part or parts of the claim, or…
- Making an offer to settle, either with or without admitting negligence.
At this stage there may even be informal contact between your solicitor and the people representing the defendant, in an effort to arrive at a settlement which satisfies both sides and thus avoids litigation. Your solicitor will be able to advise whether any settlement offered is worth accepting or whether they think you would be offered more in court. Although predicting the amount of compensation a claim is ‘worth’ is an inexact science, your solicitor will have experience of enough cases to know when the defendant is trying to persuade you to accept less than your case actually warrants.
If no agreement can be reached at this stage, your solicitor will launch formal legal proceedings by sending the defendant a N1 claim form, which is issued by the court. This form contains the names of both the claimant and defendant, brief details of the injuries and the reasons for feeling they were caused by negligence and a statement of the amount of compensation which is being pursued.
Together with the claim form your solicitor will send a copy of any expert medical opinion you may be relying upon, and a ‘Schedule of Details of Past and Future Expenses and Losses’, which sets out any loss of earnings already accrued, as well as any predicted in the future, along with other expenses arising from the personal injury.
The defendant will then file a ‘defence’ of the claim with the court, challenging any or all of the details of the case, such as their responsibility, the extent of your injuries and the amount of compensation you are seeking. Once the court has received both claims it will send out ‘directions’, allocating the case to a particular ‘track’. The ‘track’ chosen depends upon the complexity and value of the case and most clinical negligence claims preparing for trial are allocated to the multi-track, for cases worth over £25,000.
The case will take place in either the County Court or the High Court, depending upon the value of the claim and its complexity. The period from proceedings beginning and a trial starting can be as long as two years in complex clinical negligence cases. During this time, both sides work to a timetable set by the court, taking part in steps such as the exchange of witness statements and expert witness statements. The purpose of this process is to see if there are any issues on which the two sides can be brought to agreement, thus narrowing the remit of the trial itself. It may be, for example, that the defendant admits negligence but questions the amount of compensation being sought, in which case the trail would involve settling just the latter. In many cases the judge will suggest alternative means of settling the dispute, but if none can be agreed then the court case itself, which a judge presides over alone, will take place.
Court proceedings timeline
The court case will open with your barrister setting out your case, followed by them calling witnesses who will be questioned on the basis of their written statements. The claimant will usually be the first witness called and will be asked to recount their experiences under oath. After being examined by your own barrister, you will generally be questioned by a barrister acting for the defence, who will attempt to undermine your evidence. Throughout, it is important to remain calm, stick to the facts of the case and, wherever possible, answer questions with a simple ‘yes’ or ‘no’. If the judge requires clarification on a particular point then they will ask for it.
Both sides will call expert witnesses to back up their case, and it is these witnesses who will give their opinion as to whether the standard of care given was consistent with that which would be expected of a reasonable clinical practitioner, whether the claimant suffered avoidable harm as a result of their treatment and what their condition is now and going forward.
The case will close with barristers for both sides giving statements summarising their client’s case, and then the judge will retire to consider their verdict. Most clinical negligence cases take between two days and a week, although more serious claims – such as those involving a life-changing injury – can take much longer. The more complex cases may be divided into two separate parts, one which evaluates liability and, if negligence is proven, another which deals with the amount of compensation.
It may be weeks or even months before a judgement is delivered. The Judge will first write to both legal teams informing them of the decision and giving them a date upon which it will be formally handed down.
Unless the trial has been split as outlined above, the judgement will consist of a finding for or against negligence and, if it is felt that negligence and injury have been proven, an amount of compensation awarded. The amount will be calculated using two metrics:
- An amount intended to recognise the pain, suffering and loss of amenity you have experienced (calculated with reference to the Judicial College Guidelines: The Assessment of General Damages in Personal Injury Cases, now in its 13th Edition).
- An amount intended to compensate for any financial losses arising from the injury, either now or in the future. These might include loss of earnings, loss of pension, costs of care, adaptations needed for the home and future care needs.
In some cases this final sum may be the subject of negotiation between the two legal teams, and may require the input of other experts, such as those dealing with the costs of care or accommodation. The final figure may be given as a lump sum, may take the form of regular payments throughout a patient’s life, or might be a combination of the two.
Under a Conditional Fee Arrangement (also known as ‘no win no fee’) you will be protected from the risk of being out of pocket should your claim fail. Insurance taken out at the start of the process will cover the costs of the other side if you should lose. It should be noted however that, since the Legal Aid, Sentencing and Punishment of Offenders Act 2012, any fees payable to your solicitor will be taken from the amount of compensation you receive, up to a maximum of 25%.