Published 08th November 2018 | Medical Negligence

What actually happens during a Medical Negligence claim?

Medical NegligenceIf you believe you have suffered from Medical Negligence, it is vital that you have access to specialist legal assistance to help you prove your case. But what actually happens during a Medical Negligence claim?
Here, we take you through our step by step guide on what actually happens during a Medical Negligence claim process:

Step 1: The first meeting

What we will do:

Following initial contact by telephone or email we may arrange a meeting either at our offices or your home, if you prefer. We will take some details from you about your claim and explain what is involved in a Medical Negligence claim. We will also advise you on how the claim will be funded.

What you will need to do:

  • Gather together any relevant documentation. For example, any complaint correspondence with the treatment provider or medical notes and records you may have.
  • Check any insurance, credit card or other financial arrangements you have for “Legal Expense Insurance” and advise us immediately if you have it.
  • Prepare a list of all of the treatment centres concerned such as your GP’s name and address and the hospitals you have been treated at before and after the treatment giving rise to the claim.
  • Keep a note of any out of pocket expenses incurred and a diary of appointments, or care and assistance you require as a result of your injury.


Step 2: Risk assessment and funding

What we will do:

Based on the information you provide to us your claim will be risk assessed at this stage by the Medical Negligence team and if it appears to us that you have a claim worth investigating we will send you the necessary documents for entering into an agreement with us and a funding arrangement. We are happy to go through the documentation with you.

What you will need to do:

  • Read through the documentation we send to you to sign and return it to us.


Step 3: Review of your medical notes and records

What we will do:
Medical records
We will collate and paginate your notes and records and make further requests of the treatment centres where it appears that notes are missing.

We will carefully review your notes and records and identify any areas of treatment which appear to have fallen below an acceptable standard.

What you will need to do:

  • Provide us with your recollection of events (in greater detail than at the first meeting) with reference to the relevant notes and records.

Usually, once we have reviewed the notes and records we will be able to identify any areas where we need your input. This information will be useful later in the action when you prepare your statement.


Step 4: Expert evidence

What we will do:

Select and instruct an expert. You can’t win a Medical Negligence claim without expert evidence to support your case. Experts will be asked to confirm that the treatment you received fell below what would be considered to be an acceptable standard of treatment as judged by a reasonable body of medical opinion (other doctors practising the same area of medicine).  The expert will also be asked to confirm that your outcome is worse because of that sub-standard treatment. Remember, you will have had a pre-existing illness or injury which may not have responded to treatment however good that treatment might have been.

We will forward a copy of the expert’s report to you as soon as it comes to hand and we will meet with you to go through it.

What you will need to do:

Nothing needed at this point.



What we will do: 

If the expert finds that the treatment you received was acceptable or was not responsible for your injury we will go through the report with you so that you understand why we can’t progress your claim any further.

If the expert finds that you received an unacceptable standard of treatment and that the treatment has caused the injury we will write a letter of claim to the relevant treatment provider. This letter is a formal letter which will set out the allegations of poor treatment based on the expert’s findings and the nature of the injury which that treatment has caused. This letter is the first step in the pre-action protocol.

The treatment provider (Defendant) then has four months to respond to the letter of claim. Upon receipt of the response and if the Defendant denies the allegations we will refer it back to the expert for further comment.

What you will need to do:

  • Approve the copy of the letter before it is sent to the Defendant. We will send you a copy of the letter of response when it comes to hand from the Defendant, for comment.


Step 6:  Issue proceedings

What we will do:

BarristerIf the Defendant has not admitted to the allegations made in the Letter of Claim and our experts are still supportive of the claim having seen the Defendant’s response we will instruct Counsel (your barrister) to prepare Particulars of Claim. Particulars of Claim set out your case in a formal way for the court but will be a reflection of the allegations made in the Letter of Claim.

Once we have Particulars of Claim back from Counsel we will issue a Claim Form at Court and send it together with the Particulars of Claim, a Condition and Prognosis Report and a schedule of loss to the Defendant.

What you will need to do:

  • It may be that Counsel wants to see the expert(s) in conference before they draft the Particulars of Claim. Whilst not essential we would strongly recommend that you attend this conference.
  • We will arrange for you to attend one of the experts we instructed to undergo an examination so that the expert can prepare a Condition and Prognosis Report. This report sets out the details of the injury caused by the Defendant, how the injury will impact on you in the future and what your current condition is.
  • Please provide us with your diary and record of out of pocket expenses which we asked you to keep at step 1. This will help us compile a Schedule of Loss which sets out your monetary losses arising from your injury.
  • You will need to prepare a formal statement. We will have already compiled a lot of the information required for this in previous steps but it is an important document and care must be taken to get it factually accurate. We will help you with this.


Step 7: Defence

What we will do:

The experts and Counsel will need to see this but it is unlikely that it will be very different to the Response served in accordance with the Protocol. A copy will be sent to you too.

What you will need to do:

Nothing, unless you have any queries relating to the Defence.


Step 8: Costs case management conference

What we will do:

This is the first Court hearing and is purely procedural. The Court will use this hearing to ensure that we and the Defendant are not spending a disproportionate amount of money on pursuing or defending the claim. The Court will also set a timetable of steps for us and the Defendant to take the matter up to trial (if necessary).

What you will need to do:

Nothing at this stage. This is a procedural hearing which you are not required to attend. We will report back to you with the timetable set by the Court.


Step 9: Disclosure

What we will do:

We must prepare a list of all of the documentation we have access to which is relevant to your claim. This will include your medical notes and records but also for example, receipts for any equipment you may have had to purchase or employment records if you have lost earnings through being off work because of your injuries. We will advise you as to the documentation we require and then compile a list for exchange with the Defendant’s.

What you will need to do:

  • You will need to provide us with any documentation relevant to your claim. This includes evidence of losses such as wage slips, maybe bank statements, receipts, parking tickets for appointments. We will provide guidance as to what sort of documents you will need but it is important that you retain any receipts for purchase you have had to make as a direct consequence of your injury.


Step 10: Witness Statements

What we will do:

witness statementsWe will have been gathering the content of your statement throughout the case. We will assist you with your final statement and ensure that it covers all the necessary points. We will draft it in a format which the court requires. We will then exchange your statement with the Defendant’s and take your instructions on them. The Defendant’s statements will probably include a statement from the doctor who treated you.

We will forward the Defendant’s statements, together with yours, to the experts with instructions to prepare a final report.

What you will need to do:

  • We will send you the Defendant’s statements and invite your comments which may assist the experts when they come to finalise their report.


Step 11: Expert Reports

What we will do:

This is probably the most critical step in the proceedings. We will have ensured that the experts have concentrated their reports on the issues in the case and that they are still supportive of the case before proceeding to exchange their reports with those of the Defendant’s.

The court will require us to file at court and serve on the Defendant a schedule of loss. This document will set out what you have lost in terms of expenses incurred as a result of your injury (to include care which may have been provided by family members). It will also set out what the cost of your likely future needs will be. These “future losses” will be based on the opinions set out in the Quantum experts’ reports.

What you will need to do:

There are broadly two sets of experts. Those who look at the treatment you received and the consequences of that treatment in terms of your injury are referred to as “Liability or Breach of Duty and Causation” experts. Whereas, those experts who assess your needs arising from your injury (such as ongoing equipment needs or care), are called “Quantum” experts.

  • If you require an assessment of care, or equipment needs, you will be visited and assessed. In very large claims this can run up to 7 or 8 experts who will visit and carry out an assessment. These assessments provide us with the information we need to quantify your future needs such as therapies, equipment and care and assistance. The cost of these future requirements often form the bulk of any claim. For each expert who assesses you, the Defendant will also have an expert who will need to assess you too.
  • Ensure the schedule of loss accurately reflects your claim and sign. Note, the value of the claim is strongly influenced by these assessments and reports.

The court may order that the issue of liability must be resolved before allowing us to investigate quantum.


Step 12: Expert discussions

What we will do:

expert discussionsWe will analyse the Defendant’s expert evidence and identify the issues which remain between their experts and yours. We will then prepare an agenda of those issues which your expert will discuss with the Defendant’s expert. Between them the experts will then draw up a document identifying any areas of agreement and those areas which remain in dispute.

What you will need to do:

Nothing. This part of the litigation is also out of our hands. Other than preparation of the agendas we are not allowed to be involved in these expert discussions which take place between the experts concerned.


Step 13: Settlement discussions

What we will do:

Settlement can take place at any time in the action. By the time that the case reaches this stage it is likely that we will have invited the Defendant to consider settlement discussions already. There is always a risk of litigation however strong your case is and there are advantages in settling a case for both sides. A Defendant is therefore likely to engage in settlement discussions at some stage in the action.

These discussions usually take place at Counsel’s Chambers in London. We attend with Counsel and meet with their representatives. There follows an attempt to reach a settlement which is acceptable to both you and the Defendant.

What you will need to do:

  • Attend the meeting, or be available on the phone for instructions. The usual format is that each party makes offers through the process until a figure is reached which is acceptable to both parties. Sometimes agreement is not reached at the meeting but often the negotiations will continue up to trial.


Step 14: Trial

What we will do:

court hearingWe will be on hand throughout the trial to guide you through the process and keep you advised as to what is happening. We will have fully instructed a barrister who will conduct the trial on your behalf. We ensure that the experts are in attendance and that the court has all the paperwork it needs.

If your case is successful we will draw up the Court Order. The Court normally requires the Defendant to pay your compensation within 28 days of the date of the Order.

What you will need to do:

We will have taken every possible step to settle your case and avoid a trial. Trials are increasingly rare in this type of litigation but they do still happen.

  • You will be required to give evidence. Your barrister will refer the Court to your statement and ask you to verify that it is your evidence. Your barrister is unlikely to ask you many, if any questions about your statement and if they do they will have told you what those questions are likely to be.
  • The Defendant’s barrister will then ask you questions. It is more likely that they will ask you about quantum issues than liability issues. The liability issues are usually resolved by the experts and their interpretation of your medical notes and records.

Your evidence regarding quantum is very important. You will know better than anyone how your injury has affected you on a day to day basis and that will be set out in your statement. Your evidence in this respect is pivotal to the value of your claim.

What the Court will do:

Once the evidence has been heard the judge may make a decision, or they may need time to think about their decision and ‘reserve judgement’ to a later date.


Step 15: COMPENSATION & Costs

What we will do:

It is likely that your case will have been funded by a Conditional Fee Agreement. Your solicitor and your barrister will only be paid if your claim is successful. However, the experts will have been paid throughout the case and there are court fees which will also have been paid by your solicitor throughout the case.

Your insurance policy will cover the court fees and experts’ fees leaving you with nothing to pay. Your solicitor will make the claim on the policy for the experts’ and court fees.

What you will need to pay:

  • If your case is successful and you recover damages, you must pay for the insurance policy. Insurance products vary in cost but typically the premium ranges from £7,000 to £9,000. Part of the premium will be recovered from the Defendant and the rest will be paid by you. Typically, this would be between £2,000 to £3,000 in a case where your compensation exceeds £25,000.

We will have provided you with details of the insurance cover and premium at the commencement of your case and before you signed the formal documentation engaging us to act for you.

Osborne Morris & Morgan- experts in the field

The Medical Negligence team at Osborne Morris & Morgan are nationally recognised as dedicated experts in this field of law and only work on this type of case.

Our head of department, Clinical Negligence lawyer, David Turner, has been described as “highly intelligent, very practical and an experienced problem solver” by The Chambers & Partners Guide. They have described Gary Williams, the other Partner in our Medical Negligence department, as “Phenomenal” and “recognised for his impressive dedication to clients”.

Your initial assessment with us is free of charge and we work on a no-win, no-fee basis.

Wherever you are, speak to our specialist Medical Negligence solicitors in Leighton Buzzard and Milton Keynes today. Please call us on 01525 378177 or contact us online.

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