If your clinical negligence solicitor thinks there’s a good chance of your claim being successful, then they’ll begin the claim process. In a small number of cases, this can end in a court case. Many people are put off making a claim because they’re daunted by the idea of appearing in a court. But you can feel sure you’ll get the guidance and support you need to help you through.
If you’ve been treated badly by a clinician who you placed a huge amount of trust in, and this treatment has left you injured or unwell, then you have every right to seek compensation. Your medical negligence solicitor will be just one part of a team there to guide you every step of the way.
For more information, or to find out whether you could make a claim, you can get in touch with a trained legal adviser for free on 0800 234 6438.
Very few clinical negligence cases ever make it as far as going to court, because they’re usually settled before it gets to that point. NHS Resolution (which deals with claims made against the NHS), states that 96% of the claims 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 end up going to court, it will usually be because your solicitor thinks it’s the best way to prove negligence, or because they don’t think you’ve been offered enough compensation for the seriousness of your injury.
Your claim will usually be made through the ‘pre-action protocol’. This sets out the rules and guidelines of making a claim, so that it’s as simple and stress-free as it can possibly be. It’s also designed to minimise the changes of legislation actually being necessary – by resolving as many of the problems as possible without it actually needing to go to court.
As part of the ‘pre-action protocol’, your claim starts with a letter sent by your solicitor outlining your claim to the other party. They’ll also ask for 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 looked over by a medical expert, your solicitor will send the defendant a ‘letter of claim’. This letter will summarise the negligence and will include general details of the case such as a description of your injuries and details of the costs.
The other party has 14 days to reply and should give a detailed response within four months.
They’ll respond in one of the following ways:
In some cases, your solicitor might even be able to speak directly to the people representing the other party to come to a settlement which suits both sides and avoids a court hearing.
Your solicitor will let you know whether any settlement offered is worth accepting or whether they think you’d be offered more in court – they’ll have experience of enough cases to know when the defendant is trying to persuade you to settle for less than you deserve.
If an agreement hasn’t been reached, your solicitor will start formal legal proceedings by sending the defendant a N1 claim form, which is issued by the court.
This form includes details of both parties and your injuries, and a statement of the amount of compensation which your solicitor is trying to get for you.
Your solicitor will also send a copy of any expert medical opinions, and a ‘Schedule of Details of Past and Future Expenses and Losses’, which sets out any loss of earnings as well as any predicted in the future, along with other expenses. The defendant will then file a ‘defence’ of the claim with the court.
The case will take place in either the County Court or the High Court, depending upon the value of the claim and how complicated it is.
The court case will open with your barrister setting out your case, followed by them calling witnesses who will be questioned based on their written statements.
Both sides will call expert witnesses to back up their case, who will give their opinion as to whether the medical care given was below the expected standard, whether you suffered ‘avoidable harm’ and what your condition is now and going forward.
The case will close with barristers for both sides giving statements summarising your 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 are sometimes divided into two separate parts: one to find out who’s responsible for the injury, and another which deals with the amount of compensation.
The Judge will write to both sides to let you know the decision. If your case is successful, then the amount of compensation will be calculated based on two parts:
The final figure may be given as a lump sum, may take the form of regular payments throughout your life, or might be a combination of the two.
Because most negligence solicitors work on a no win no fee agreement, you’ll be protected from the risk of being out of pocket if your claim isn’t successful. Insurance taken out at the start of the process will cover the costs of the other side if you should lose.
Nicola is a dual qualified journalist and non-practising solicitor. She is a legal journalist, editor and author with more than 20 years' experience writing about the law.
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