The Process for Brain Injury Claims
Our philosophy is to offer exceptional access directly to our highly motivated specialist claimant lawyers.
If your child’s brain injury was the result of an accident, please click here to read about the process for accident claims.
If your child’s brain injury was due to negligent medical treatment, in general terms, the litigation process can be broken down into the following steps:
Once you have engaged a specialist solicitor, the first step is to determine the most appropriate funding arrangement for you. Your options can include pre-existing Legal Expenses Insurance, Legal Aid or a “no win, no fee” agreement.
We will request copies of your child’s medical records and GP notes from the hospitals at which he/she received treatment. These are thoroughly reviewed to identify the specific incidences of substandard treatment that resulted in injury or loss. We will also identify each of the potential defendants in the case.
To successfully bring a claim, we, as your specialist solicitors will need to prove that:
- The medical professionals who treated your child provided substandard treatment
- That as a result of that substandard treatment, your child has suffered injury and you have suffered financial loss
If we feel that your child’s medical records are supportive of a claim, we will instruct a specialist medical expert to provide an opinion regarding any potential incidences of substandard treatment identified. It may be necessary to approach more than one expert if your notes indicate that substandard treatment was provided by medical professionals in more than one discipline. We will also ask appropriate medical expert(s) to report on whether any of these incidences of substandard treatment resulted in your child suffering an injury or illness.
Once we have received supportive medical evidence from the medical experts, we will draft a formal “letter of claim” to the medical professional(s) or NHS Trust responsible for any treatment considered to be substandard. The letter of claim will set out in detail the circumstances surrounding your child’s treatment, the specific allegations of negligence we are making against the Defendant(s) and the particular injuries and losses you and your child have sustained.
The Defendant will then have a period of four months to investigate the claim and respond with a formal “letter of response” outlining the treatment provided, any reasoning behind decisions made and a summary of medical records. The letter may contain either an admission or denial of liability.
We appreciate that specific difficulties may arise when a claim for negligence is against the NHS Trust responsible for on-going treatment or against an employer or colleague in the medical team. We understand the importance of maintaining a good relationship with your child’s treating medical team and are used to handling these situations.
If liability is admitted, we will arrange for you to be assessed by a medical expert who will provide a formal report on your child’s condition and prognosis. We will also need to carefully consider your child’s past, ongoing and future requirements and where appropriate, commission expert reports on your child’s current and future care, therapy, accommodation, assistive technology and any other needs to enable us to accurately value the claim. In careful consultation with you, we will then make a formal offer to settle the claim to the Defendant. If, however, your child requires further treatment and therapy before the claim can be quantified, we will request an interim payment to fund the treatment and therapy required. In appropriate cases we can also arrange for funds qualified case manager to manage and coordinate a care and therapy package for your child.
If liability is denied, we will consider the letter of response with our medical experts. If we still consider you have a strong case, then we will obtain a medical report on your child’s condition and consider issuing court proceedings to send out the strong message that we are willing to allow the claim to be determined by a judge at trial.
If liability is denied, or if a settlement has not been reached, we may need to issue court proceedings. In order to do so the following documents will need to be prepared:
(a) The Claim Form – a formal document setting out brief details of the parties to the claim, the alleged date(s) on which the substandard treatment occurred and on which you realised your child had suffered injury as a result of the treatment received and the approximate value of the claim. The court will be asked to seal or “issue” this document, signifying the issue of proceedings
(b) The Particulars of Claim – a formal document setting out paragraph by paragraph the circumstances surrounding your claim, the particulars of the negligence alleged and the injuries sustained as a result with reference to a medical report.
(c) A medical report from one of the medical experts involved in the claim, setting out your condition and prognosis
(d) A Schedule of Loss – a formal document setting out the details of the past and future loss and expenses incurred due to your child’s injuries
Once the Court has issued the Claim Form, we have a period of 4 months to serve all of the above documents on the Defendant(s) or their nominated solicitors. From the effective date of service, the Defendant(s) or their solicitors have a period of 14 days to serve an Acknowledge of Service indicating they intend to defend the claim. They then have a further 14 days to serve a Defence. The Defence will respond paragraph by paragraph to the Particulars of Claim with an admission or a denial of liability. If no Defence is filed, judgement can be entered against the Defendant(s) and the court will provide for your compensation to be assessed.
Once the Defence has been served, the court will list a Case Management Conference to determine a timetable of steps to be completed by both parties to narrow the issues and/or value your claim. Such steps include disclosure of relevant documents, exchange of witness statements and exchange of experts’ reports. The Defendant may be granted permission to instruct its own medical experts in the same disciplines as your medical experts. The court will also list the case for trial.
During the court timetable we will continue to consider whether a settlement can be reached, but if the parties are unable to negotiate a settlement, the claim will ultimately be decided by a judge at trial. Please be reassured that many cases do settle without having to proceed to trial and the court will usually require the parties to consider alternative methods of settling a claim to trial, for example a round table settlement meeting where both parties and their representatives meet with a view of trying to negotiate a settlement face to face.