Medical negligence claims must be made within three years of the injury being realised. There are a few exceptions to this. Children have until they are 21 years old, and there is no limit for anyone who is mentally incapacitated. If someone dies within the initial three year period, the qualifying time starts again from the date of their death. In special circumstances, the courts sometimes allow claims outside this time. If your medical accident happened longer than three years ago, we can advise you if your claim is likely to be considered.
Here is the general procedure for progressing a medical negligence claim. Not all aspects will apply to every case but we will advise you and guide you throughout the process according to the details of your claim. We understand that legal language can often be complex so please see our explanation of legal terms for definitions.
Step 1 – Assessing Your Claim
When you contact Gadsby Wicks you will speak to one of our advisers who will be medically qualified and experienced in the processing of medical negligence claims. You will be asked to provide the details of your potential claim. Our medical negligence solicitors then meet to discuss the case and we will let you know whether or not we can take it on. This does not cost you anything and you are under no obligation to take it any further if you decide not to.
Step 2 – Funding
You will meet with one of our advisers to discuss and agree how the claim will be funded. Remember we guarantee that you will pay nothing upfront, either to us or anybody else on our behalf, there are no hidden costs and there will be nothing to pay if the claim doesn’t succeed.
Step 3 – Investigation
Next, we investigate further to see if the claim can be pursued. You will meet with your nominated lawyer who will obtain relevant information including your medical treatment history and details of the problems that you have experienced. We then prepare a written statement of the history of your medical treatment, which we ask you to approve. We obtain all of your relevant medical records from all of your treating doctors and hospitals and send the written statement and the medical records to a suitably experienced qualified and independent medical expert. If the expert’s opinion is that sub-standard care was provided to you, we will obtain a further independent expert’s medical opinion on whether this sub-standard care has in fact resulted in any injury and, if so, to what extent.
At this point, we will be able to advise you whether or not you have a claim that can be pursued and, if so, what compensation you can expect to receive if it succeeds. If we decide the claim cannot go ahead, you owe nothing. Our experience has shown that it usually takes around 18-24 months to gather all the evidence and complete the investigations.
Step 4 – Settling the Claim
We meet with all of the medical experts and a barrister, who also specialises in medical negligence claims, to discuss and agree the best way to pursue the claim. After we have agreed the best course of action, we send a formal Letter of Claim to the doctor or hospital trust (the defendant) setting out the details of your claim. The defendant’s solicitors have 4 months to respond to this. If they admit the claim, we negotiate what would be considered a fair and reasonable amount of compensation for you. If they accept this, the case is said to be ‘settled’ and everything that has been agreed, including making any financial payments, is carried out by each party’s solicitors.
Going to court can be time consuming and costly so it is in everybody’s interests to settle the claim. A claim can be settled at any point leading up to the date of the trial. (See Part 36 Offers below for more about this).
Step 5 – Pursuing the claim through the Courts
If it is not possible to settle the claim, we take it further by starting court proceedings. It is vital that all the necessary legal procedures are followed or the case may fail. We make sure that we push your claim forward as quickly as possible but we will not prejudice your chances of success by cutting corners. The key steps we follow are outlined below. As a guide, most hearings take place within two years of the issue of court proceedings.
Particulars of Claim
We prepare the necessary court papers including Particulars of Claim. This is the document that sets out the basis of your claim and which is filed with the court and sent to the Defendants when court proceedings are issued.
The Particulars of Claim sets out:
- the circumstances that have led you to make the claim
- why you think your opponent is legally responsible for what has happened
This must be accompanied by:
- medical reports setting out your injuries and
- a schedule setting out details of your out of pocket expenses (such as travel expenses to meetings, medical examinations and reports) and other financial claims. This includes losses you have already experienced, such as through having to take time off work because of your injuries, and future losses such as if your earning capability will be affected by your injuries. It can also include future things you might need such as if you will need to pay for care or special equipment
We then issue a Claim Form (the document that must be filed with the court and served on the opposing party in order to commence a legal claim) on your behalf.
The defendants have one month in which to file their detailed response to your claim, known as their ‘defence’. This is prepared by your opponent’s lawyers and is a document that sets out the reason why they dispute your claim. The defendants may also stipulate that they want you to meet with their medical experts.
The Case Management Conference
We attend the court with the defendant’s solicitors and either a Master or District Judge to decide how the claim should proceed and to set a timetable for all of the steps that are to follow leading to a full court hearing known as a trial. The court then fixes a date for the trial.
At this stage in the proceedings, both parties must exchange a list of all the documents that they have that are relevant to the claim.
Both parties then exchange:
- copies of all signed written statements from all witnesses whom they intend to call to give evidence at the trial
- copies of reports from all of the experts that they intend to rely on at the trial, dealing with Breach of Duty (whether or not you received sub-standard care) and Causation (whether or not any alleged sub-standard medical care has caused injury and, if so, to what extent)
Claiming for Financial Losses
We send a Schedule of Loss to the defendants. This is a document that we prepare, setting out full details of the claim for financial losses (including special damages and future loss). The defendants serve a counter schedule to us as your solicitors. This is prepared by the defendant’s solicitors and sets out the defendant’s response to your claim for financial losses.
The medical (and other) experts for both parties meet and prepare a joint statement setting out the points where they agree and the points where they disagree. It is at this stage that we know for certain the precise nature of the defendant’s case.
Part 36 offers
Before the trial date, it is possible for you to make a formal offer to the defendants to accept a particular sum in settlement of the claim. Similarly the defendant can make an offer to you. This is known as a Part 36 offer. It is a formal offer to settle the claim and must be put in writing.
If you reject an offer made by the defendant and the eventual award made by the court is no more favourable, you will be at risk of meeting the legal costs of the case for both sides from the date the offer was made, even though you have won. Either party can make a Part 36 offer at any time, even before court proceedings have been issued. We will advise you on the suitability of any offers that are made.
If it proves impossible to settle the claim it will be necessary for it to be decided by a Judge at the end of a trial. There is no jury in a medical negligence claim.
If you win, you will be awarded compensation by the Judge. The Judge will also order the defendants to pay a contribution towards the legal costs and expenses. Some of the shortfall of those legal costs and expenses will need to be paid by you from your compensation. We will advise you throughout the claim how much this is likely to be.
If you lose, we will consider the Judge’s reasons very carefully and then let you know if there is any possibility of a successful appeal. If it is not possible to appeal, that will be the end of the case but you will owe nothing.
If you feel you may have a claim for compensation because of medical negligence but are unsure, our section on medical negligence and our client case studies will show you the types of claims that are generally successful. If you decide you would like to progress this further, please contact us on freephone 0800 321 3112 or complete our enquiry form and we will get in touch.
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