What happens if your claim is litigated?
The new co-operative approach – hopefully!
Your solicitor may have commenced court proceedings already, stating simply that you are claiming damages for clinical negligence, in order to avoid your claim being time-barred. If not, then, provided that your claim has been fully investigated and found positive, a letter of claim has been sent to the defence, and all attempts to settle the claim have failed, he or she will now do so as soon as possible.
The solicitor will select whether your case should be in the High Court, either in London or a district registry, usually difficult, high value cases, or the County Court. The High Court was preferred in clinical negligence actions of any value because the judges there have greater experience of such cases, but increasingly the county court is being used.
There is a Clinical Negligence Pre-action Protocol which must be complied with by all parties in clinical negligence disputes. The protocol sets standards for pre-action litigation and is now a rule of court. It requires a “co-operative” approach – in fact premature proceedings could be penalised in costs. The aim of the Protocol, and the court procedure rules, is to encourage settlements. Experience so far appears to indicate that this is being achieved.
The solicitor commences proceedings by issuing a claims form which must be served on the defendant within four months. This may give particulars of your claim or these may be served separately. Once the claim form has been issued it should be served on the defendant personally – not his insurers which would probably result in delay.
The defence will now, quite possibly for the first time, instruct their own solicitors who may want to slow things down so that they can investigate the case. Your solicitor should move the action on as speedily as possible keeping up pressure on the defence. This is where skills as a litigator are essential. Without being discourteous the solicitor should not put up with any delaying tactics, using court orders where necessary and seeking costs wherever possible. If it is believed that the defence has no case application may be made to the court for summary judgment. Another strategy could be an offer to settle on the basis of a medical report on your condition and prognosis (termed a Part 36 offer under the Civil Procedure Rules).
The court forms in a clinical negligence case have been made more “user friendly” under the Civil Procedure Rules but they can still appear complex and technical to non-lawyers. Your particulars of claim, which must be verified by a statement of truth, will set out the duty of care owed to you, state the relevant facts surrounding your medical treatment, provide particulars of the alleged negligence, contend that that breach of duty caused your damage and loss and, finally, claim damages and interest. It is served on the defence with a medical report and statement listing your special damages (these are losses you have actually incurred as a result of the accident, such as travel, special equipment etc as opposed to general damages for pain and suffering).
The defendant has 28 days (High Court) or 14 days (county court) to serve a defence. This will probably be the time when there will be a searching of hearts and minds by the defence and it will be up to your solicitor to keep the pressure on for settlement. The defence may make a payment into court, or an offer to do so, in settlement of your claim. In the unlikely event that a defence is not served in due time your solicitor can apply for judgment in default.
The defence may apply for more details of your claim if they do not think that you have supplied enough information. It will be up to your solicitor to recognise those applications that are genuine and which must be answered and those that are merely delaying tactics.
The defence may also require you to have a medical examination by their own doctor. Technically you are entitled to refuse but if you do so the court will almost certainly stay your action until you do agree.
The defence will state what, in the defence view, the doctors actually did, may put the claimant to proof of allegations of fact and will probably deny the alleged negligence, or contend that, if there was negligence, it did not cause you loss. Once served on your solicitor copies will be sent to counsel and your medical expert for consideration. Your solicitor will also see whether further information is required from the defence. At this stage the witnesses’ statements will be prepared, including your own based on your first proof as amended in the light of subsequent knowledge.
The management of your case will now be in the hands of the court. Liaising with medical experts and counsel on availability dates, your solicitor should apply to the court for directions as to how your case should be run up to the trial. On this application, which will describe the action and the issues which it raises, the court will issue directions such as whether the parties should give further details, that each side should exchange a list of relevant documents in their possession, inspection of those documents, exchange of witness statements, number of witnesses, meeting of experts and date of trial.
The court has extensive case management powers under the Civil Procedure Rules. For example, it may direct that a single expert be appointed to assist the court although this power is unlikely to be exercised in a clinical negligence case of any value. It may direct mediation as a preliminary to court proceedings. The court’s duty is to deal with the case justly, i.e. ensure that the parties are on an equal footing, save expenses and deal with the case in a way which is proportional to the value of the claim, importance of the case, complexities of the issues and financial position of each party. The court must ensure that the claim is dealt with expeditiously and must allot an appropriate share of the court’s resources.
If mediation is ordered in your case that process will get under way once a suitable independent mediator, preferably with experience in clinical negligence, is found and a meeting arranged, a matter of a few weeks usually. The proceedings are informal. Be prepared for the mediator to counsel you as to the need to settle your case but accept the advice of your solicitor. Mediations can be costly, typically around £3000 for one day.
A pilot scheme being tried in Manchester is Joint Settlements Meetings (JSMs), which can be ordered by the court. These meetings, in which the parties gather round a table to attempt a settlement, could
- reduce delay and avoid increased costs;
- oblige the parties to meet or give a reason why not;
- ensure that a record of the meeting was made;
- penalise the unco-operative lawyer, whether acting for defence or claimant, in costs;
- incur no costs by a third party, eg a mediator;
- provide a fair resolution process to both parties, which mediation does not always do.
If the pilot scheme is a success JSMs may be tried in other district registries and county courts.
Before your case goes on to trial there will probably be another conference with counsel to consider all the evidence, particularly the expert evidence. Is your expert sticking to his or her opinion? The expert evidence will have been exchanged and, probably for the first time, your expert will see what the defence expert has reported. He may decide to change his mind which will require a supplementary medical report. Your solicitor has 28 days in which to put written questions to the defence experts to clarify their reports.
The final experts’ reports are vital to the case because the judge hearing the case will have read these before the trial begins.
In a case of any complexity the court may well have ordered that the medical experts should meet, and list, for the benefit of the court, all the issues agreed as requiring resolution and agree on what is, and what is not, disputed between them.
What if your medical expert is browbeaten by the defence expert into changing his mind at this experts’ meeting? Unfortunately there is little that can be done. The expert’s duty is to the court not to you. He cannot be sued in negligence. The only consolation is that at least this has not happened during the course of the trial.
Once proceedings have been issued your solicitor must set the action down for trial within 15 months or the date ordered during case management. Two to four years, or even longer, may have now elapsed since your initial interview. Your case will be heard and decided by a judge alone, juries are not used in the English courts in medical negligence cases. They can be used in Scotland, and frequently are in Canada and the United States.
To most people unfamiliar with the inside of court rooms the prospect of giving evidence may seem terrifying. This is, perhaps, further exacerbated in medical negligence cases because those that do end up in court, requiring oral evidence, are likely to be hotly contested by the defence.
The way in which a witness presents his or her evidence can make a big difference to the outcome of a trial. You have to appreciate that the court has the difficult job of reaching a decision – a decision based on evidence, whether written or spoken. If you, or your relatives or friends give evidence, it will be as lay witnesses of fact, that is people who saw, heard or did something. It is the expert witnesses to whom the court will look for independent opinions on the clinical issues in the case.
As a witness you are not supposed to have a detailed knowledge of the law. So make sure you clear up any questions you have beforehand. Ask your solicitor or barrister to run through with you what will happen. Find out when and where you are needed. Find out how to get there, where you can park your car, the buses, trains. Find out how long the hearing will take. Put the date in a diary or put up a note to remind you. Cases can go very wrong if witnesses do not turn up. Re-read any documents, particularly your statement to your solicitor, to refresh your memory. If you are not in a local court, plan everything for being away from home, including your domestic arrangements.
Ask where you should meet and wait in the court building. Check with your solicitor whom you can and cannot speak to. You may not be allowed to talk to the other witnesses or parties in the case.
Visit a hearing at court, preferably the court where your case will be, to see the layout and so forth. Many courts are open to the public and you will find the visit boosts your confidence. Think about your appearance in court and plan what you are going to wear.
On the day you are to give evidence arrive at court early and meet your lawyers. When you go to give your evidence, you will be called by the usher. Once in the witness box, the order of procedure will be:
1. You will be asked to take the oath or affirmation. The oath is a promise on the Bible or other holy book, to tell the truth. The affirmation is simply a promise, not based on a holy book. You will be asked to read the words from a card or paper in front of you, and if swearing the oath, to hold the book in your uplifted right hand. It is entirely up to you which you choose to do. They carry equal weight. Take your time to read slowly, clearly and audibly, facing the judge. You will be asked to give your full name and address or your barrister will ask you to confirm these details.
2. Examination in Chief: The purpose of examination in chief by your barrister is to enable the judge to hear your evidence in your own words. You will be questioned by your lawyer as to what happened to you.
3. Cross-examination: The purpose of the cross-examination is for the other side to try to get their view of the case across by asking questions that favour that view. This can be upsetting. But say what you want to say and remember only to answer to the judge. Barristers use many techniques during cross-examination to undermine their opponents’ witnesses. The two basic aims of cross examination are:
a. To advance their client’s case and
b. To undermine the opponent’s case.
The barrister’s own case is advanced if he can elicit facts and opinion from your testimony that is helpful to his case. He can also try to develop his theory of the case. You will hear words such as “I put it to you …“. Simply say what you need to say to explain your statement of the facts.
The opposing barrister will try to undermine your evidence. He will do this by trying to discredit your testimony, eg by testing the limits of your perception, testing your memory or testing your powers of communication. He will also try to discredit you by discrediting your conduct, showing any inconsistencies in your evidence, or indicating bias or unreasonableness. Always you should remain calm remembering you are there to help the judge as a witness.
4. Re-examination: This does not always take place. If it does, it is an opportunity for your barrister to clarify something that may have been discussed during your cross-examination.
Finally, do not take things personally. This is easier said than done. It will help if you remember that you intend the court to come to the right decision and that you only speak to the judge. Do not argue with the lawyers. Do not be afraid of the lawyers. Just focus on your evidence.
The first, and fundamental, principle in giving evidence is that you must tell the truth. You will be taking an oath promising to tell the truth and if you knowingly lie, you will be committing a criminal offence. In that case the judge could well take the Draconian step of sending the papers to the Director of Public Prosecutions – as has happened in at least one clinical negligence case in our files.
Telling the truth will also give you confidence. Many witnesses feel that they must embellish their story, but the defence lawyers will easily spot this and will soon expose any inconsistencies.
Secondly, if you do not understand a barrister’s question, ask for it to be put in a different way. If you do not remember something, say so. Judges, these days, are expected to be courteous to litigants.
Thirdly, only speak to the judge. He will be making the decision. Do not try to persuade the questioning barrister – or even speak to him. A good tip is when you get into the witness box, directly face the judge and point your feet at him. Do not move your feet, swivel at the hips to face the barrister, whether your own or the defence, and listen carefully to his question. When he has finished his question, and not before, turn back to face the judge. The fact that your feet are pointing that way will remind you. You have a few moments in the turning to prepare your answer. Never hurry your answer. When you are facing the judge, give your answer. He will be writing notes, you can see if you are speaking too quickly as he may be writing down your answer. Don’t worry if he is not looking at you as he is writing.
When you have finished your answer, turn back to the lawyer slowly. This signals to ask the next question. Do not be tempted to get into a conversation with the lawyer. If you are allowed to sit, turn the chair a little towards the judge or sit in that direction.
The expert medical witnesses will then give their evidence on whether, in their opinions, there was negligence and, if so, whether that negligence caused your injury. Medical witnesses may also be needed to prove the extent of your injuries and what amount will be required in damages to compensate you for your pain and suffering and meet your future needs, for example, for medical equipment; special education and transport; modifying your home.
At the conclusion of the evidence counsel for each side sums up his or her case.
You must understand that the legalistic way in which the issues need to be examined and determined by the judge does not mean that he or she has anything but the very greatest sympathy for the sadness and distress which victims of medical accidents often experience. Judges are often moved greatly by the courage of many litigants. But it is part of the judicial function and duty, to remain detached from the emotion of the case so that the legal and factual issues can be analysed dispassionately, unaffected by sympathy felt for any party, so that justice may be administered fairly to all parties to the suit.
In a simple case the judge may deliver judgment orally at the end of counsel’s closing speeches. Your solicitor should take notes of the judgment (he is not permitted to record it mechanically) and explain it to you. The judgment is recorded by a court tape recorder and can be obtained from an official shorthandwriter, or on the internet, once approved by the judge.
Finally a headnote is prepared by a barrister summarising the facts of the case, the issues, the arguments and the decision of the court. Judicial comments on the medical experts are appended to that experts’ name and added to our Confidential Index of Medical Experts.
In a clinical negligence action of any complexity the judge will reserve judgment. You will then have to wait for the written judgment to be delivered which could take up to three months.
What are your chances of winning? In reported medical negligence cases the odds are around 50 per cent. But several of our subscriber Firms claim that they have never lost a clinical negligence case which has gone for trial. If you have won, congratulations. In addition to paying your damages the defendant will probably be ordered to pay most of your costs – although remember that if you are receiving state funding the community legal service fund will be able to recover any shortfall in their costs from your damages award. If your solicitor is providing services to you under a conditional fee agreement with an after the event insurance premium, then most, if not all, of the solicitor’s uplift in his fees and the premium should be recoverable from the defendant.
If you have lost then your solicitor and counsel will go through the judgment to see if there are any grounds for appeal. As a general rule appeals lie to the next level of judge in the court hierarchy, thus an appeal from a district judge (county court) lies to a county court judge, and from a High Court judge or county court judge to the Court of Appeal composed of three judges, usually lords justices of appeal.
Permission is usually required to appeal – either from the lower court or the appeal court. Permission will only be given where the court considers that any appeal would have a real prospect of success or some other compelling reason.
An appeal will only be allowed where the decision of the lower court was wrong or unjust through serious irregularity. In exceptional cases second appeals may be sanctioned.
If successful how much will you get? Be warned that a recent study found that many claimants were dissatisfied with the damages which they received. Your damages will be under the heads of
Special damages: your loss of earnings and costs of care before the trial;
General damages: Determining what general damages you are entitled to can be complex. Your solicitor will have his or her own experience, textbooks and reports of recent previous cases for guidance. The solicitor is unlikely to be able to give you more than an approximate amount to cover
- pain and suffering: including any reduction in your expectation of life, psychological damage; the effect on your life such as enjoyment of sport, hobbies and holidays, sex life;
- the effect on your ability to work, loss of earnings after the trial and loss of pension;
- cost of future care.
If you do not know how your injuries will affect you in future you can obtain provisional damages.
In certain very rare circumstances, where a doctor or dentist has behaved disgracefully, you may be able to recover aggravated or exemplary damages.
On appeal your damages could be reduced, they could also be increased. Or a new trial could be ordered.
Your case will be concluded with an assessment of costs: This is a system whereby a court official will vet all the costs and disallow those that he considers unnecessary. Your solicitor has the task of assessing and submitting what is and what is not necessary.
Finally, your solicitor’s task was to prove that the defence was liable for your injuries, to maximise the amount of damages you obtain and obtain that compensation as soon as possible. What if you are not satisfied with the service provided by your solicitor? Initially you should complain to the senior partner of the Firm. If you remain dissatisfied you can complain to the complaints department at the Law Society.