Where can you find an experienced clinical negligence solicitor?
The complexity of medical negligence claims means that this is the area of personal injury law, above all others, which requires the input of expert legal assistance. The complex nature of clinical negligence cases tends to arise from the type of evidence being considered. Whilst the principles are similar to that of any other compensation claim, the facts upon which the judgement will be made tend to be based on matters of medicine, science and anatomy and therefore often require in depth research and the input of numbers of experts.
As in most personal injury cases, a successful claim for clinical negligence relies upon proving two things:
1) That you were treated (in this case by a medical practitioner) in a negligent manner, and…
2) This negligence caused injury or illness which would otherwise not have occurred.
Even having demonstrated these two often contentious facts to the satisfaction of the court, a claimant will then have to pursue an amount of compensation based upon the percentage of their illness or injury which can be directly attributed to the negligent treatment, and the financial impact this has so far had and will continue to have in the future. Given all of that, and the fact that pursuing a claim for clinical negligence can often be a stressful business which takes years to come to a conclusion, it’s vital that anyone who feels they may have been victim of such negligence seeks the advice of a solicitor who is an expert in the field at the earliest possible opportunity. This will have three positive benefits:
1) It will mean that your claim can begin before the statutory time limit of three years from the date upon which you became aware of the negligence and its’ effects.
2) It will allow you to give the details of your situation, of anyone else involved and of any witnesses whilst the events are still fresh in your mind and while it will be easier to trace all the relevant records.
3) It will allow your specialised solicitor to evaluate the details of your case and advise whether a claim is likely to succeed, what it will involve and how it will be financed before you invest too much of your time and/or money.
An initial meeting with a solicitor should last for approximately an hour, during which time they will listen to the details of your case and decide whether it is worth investigating further. Until this further investigation has been carried out it is doubtful whether a solicitor will give a definite yes or no to the question if you have claim, but they will be in a position to evaluate whether it worth further investigation and analysis.
A meeting of this kind is also your own opportunity to ask the questions which will allow you to ascertain whether the solicitor you are dealing with is an expert in the field. Although much of the dynamic of the client/solicitor relationship, particularly in longer cases of clinical negligence, is based upon the degree to which you feel comfortable answering their questions, taking their advice and following their instructions, merely feeling ‘relaxed’ with a solicitor should never be considered enough. The following is a list of the kind of questions you should be prepared to ask a clinical negligence solicitor and which, if they are serious about taking your case and are genuinely well versed in this area of law, they should be perfectly happy to answer:
- Are one or more members of the firm accredited to the Law Society’s Clinical Negligence Panel?
- Are one or more members of the firm also members of the Action Against Medical Accidents (AvMA) Specialist Clinical Negligence Solicitors Panel?
- Who will pay for expenses such as medical experts, barristers and court fees as the claim progresses?
- Who will pay such expenses in the event of you winning or losing the claim?
- Do you need to purchase an insurance policy before launching the claim?
- What percentage of any compensation you receive will have to be paid to the solicitor?
- Which particular solicitor will deal with your case and what are their personal qualifications in legal and/or medical terms?
- How much experience do they have of dealing with this kind of claim?
- Do they deal exclusively with clinical negligence cases?
- How many of the clinical negligence cases they’ve handled have they actually taken to trial?
- How many cases, besides yours, are they likely to be working on?
- Will any of the work of piecing your case together be delegated to other people?
- If the answer to this question is yes, then what will the nature of this work be, who will be carrying it out and how experienced and qualified will they be?
- Will your solicitor travel to have meetings with you in your home or place of treatment?
- Is there any risk that you will have to pay your opponents legal fees if your claim is unsuccessful?
This may seem like a daunting list of questions to throw at a solicitor on your first meeting, but then the process of claiming clinical negligence is daunting in itself, and the ability of a solicitor to give satisfactory answers to the questions above will allow you to build a strong relationship of mutual trust as the claim progresses.
The two bodies mentions in the list of questions above, the Law Society and Action Against Medical Accidents (AvMA) have accredited panels of solicitors, and membership of these panels represents a certain level of expertise, knowledge and experience.
The AvMA is a charity devoted to upholding the safety and rights of patients, and its Specialist Clinical Negligence Panel Code of Conduct, for example, states, amongst other things, that members should:
“…be open and honest with clients and potential clients from the start about chances of success in legal action offering alternatives to litigation where appropriate”
“…put the client or potential client’s interests first, even if this means advising clients that another solicitor may be better equipped to meet their particular needs”
“…comply with the Professional Code of Conduct of the Law Society, and to conduct legal work in a professional and timely manner on behalf of their client”
“…keep up-to-date with developments in clinical negligence and other relevant areas of law and policy; to attend AvMA events and, as far as practical, network and share knowledge and experience with other specialists”
The Law Society, on the other hand, is the independent professional body which sets the standards and codes of practice for all solicitors in the UK, and offers accreditation which provides a benchmark for members of the public seeking the highest levels of excellence and performance. As well as providing accreditation for solicitors specialising in personal injury cases, the Law Society also has a Clinical Negligence Panel. According the Law Society itself, the purpose of the Clinical Negligence Accreditation Scheme is to maintain the highest standards of legal representation for the victims of clinical negligence. Although solicitors who are not accredited are free to work on clinical negligence cases, they will not be regarded as specialists in the field.
Amongst the areas of law which members of the scheme will be expected to demonstrate competence in are:
- Common law around negligence and vicarious liability, including causation and consent
- State benefits
- Limitation of actions
- Relevant European Community legislation
- Civil procedure rules
- Claims arising from death
- Coronial law
Other knowledge they will be expected to demonstrate will include:
- The structure of the NHS
- The relevance of NHS (Crown) indemnity rules
- Complaints to and about hospitals, GPs, private doctors and private hospitals, the General Medical Council (GMC), CQC and the Health Service Commissioner
- The particulars of dealing with private health care
- The role of medical defence bodies
- The rules and professional codes of conduct of the medical professions
- The ability to read medical records and realise what information should be present, to understand the implication of medical reports and to assess the legal implications of the medical facts of your case
- General human anatomy
- Pre-Action protocol
- Case management
- The legal and ethical issues relating to treatment, consent, end of life issues, confidentiality, drug trials and experimental treatments
- Risk assessment
As can be seen from even this brief summary, the role of specialist clinical negligence solicitor is one which requires a great deal of knowledge and expertise and is in constant need of updating, refreshing and reviewing. Aside from the basic facts of your case, a specialist solicitor will be able to offer advice on matters such as; the Human Rights Act and how it relates to you as a patient, the mechanics of an inquest into a person’s death, the structure of your local health authority, the issue of a doctor or hospital wanting to stop treatment against your will, the problem of a suspected breach of confidentiality and the standard of treatment provided in a care home. In short, no matter what the details of your case, the right solicitor will have the relevant experience and knowledge to offer advice which is tailored made and designed to achieve the best result for you personally.
Whilst evaluating your case and deciding whether to proceed to a claim, your solicitor may ask to see your medical records, or to seek your written content to access them. The right to see your own medical records is enshrined in the Data Protection Act 1998, under section 7. The process, known as making a ‘subject access request’ involves writing to the service which holds the records you wish to see or provide for your solicitor. This could be a GP Surgery, mental health team, hospital management, individual practitioner or Clinical Commissioning Group. If you are unsure exactly who to ask for the records, your local Patient Advice and Liaison Service (PALS) might be able to offer some advice.
Once you have provided the information which an NHS body needs to identify and trace your records, they have a duty to provide them within 40 days, although the NHS itself pledges to deal with such cases in 21 days.
Alternative dispute resolution
One common misconception about solicitors is that they are always keen to take a case to court and prolong legal action as long as possible. As can be seen from the likes of the accreditation schemes outlined above, however, the best clinical negligence lawyers always work for whatever is best for their clients, and this sometimes means suggesting an alternative form of dispute resolution such as mediation, arbitration, neutral evaluation and official ombudsman schemes. The stress and time of a full blown court case is something which only a small percentage of clinical negligence claims actually involve, and which your solicitor will only embark upon if it is genuinely the only way for you to receive the compensation you deserve.