The Process for CP & Birth Injury Claims
Every medical negligence claim is unique and we carefully calculate how best to handle your claim in order to ensure the best result for you. 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 medical records and GP notes from the hospitals at which you 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 your case.
To successfully bring a claim, as your specialist medical negligence solicitors we will need to prove that:
- The medical professionals who treated you provided substandard treatment
- That as a result, you have suffered injury and financial loss
In most cases, early treatment from appropriate medical specialists can transform your medical outcome and improve future prospects. We aim to ensure that appropriate medical treatment, therapy and support (including surgery, physiotherapy, occupational therapy, speech therapy, counselling, care and assistance) are delivered at the earliest possible opportunity, rather than waiting until your medical negligence compensation claim has been settled. We can arrange a prompt assessment of your needs by a qualified case lawyer to develop and coordinate a bespoke care and therapy package before the issue of liability has been determined in your case.
If your medical records are supportive of a claim, we will instruct a specialist medical expert to provide their preliminary opinion on whether the notes suggest there were any incidences of substandard treatment. If so, we will ask for these to be clearly 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 you suffering an injury. Depending on the facts of your case, more than one expert may need to be consulted.
Once we have received supportive medical evidence from the medical experts, we will draft a formal “letter of claim” to the Defendant(s) in your claim. The letter of claim will set out in detail the circumstances surrounding your treatment, specific allegations of negligence you are making of the Defendant concerned and the particular injuries and losses sustained as a result.
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 treating medical team and are used to handling these situations.
If liability is admitted, we will arrange an assessment by a medical expert who will provide a formal report on you and /or your child’s condition and prognosis. We will also carefully consider your past, on-going and future requirements. Where appropriate, we will commission expert reports on your current and future care, therapy, accommodation, assistive technology and any other needs to help us value your claim accurately. If the experts are able to give a firm prognosis, we will (following careful consultation with you) make a formal offer to settle your claim to the Defendant. If you require further treatment or therapy before the claim can be quantified, we will request an interim payment to fund treatment and a qualified case manager to coordinate a bespoke care and therapy package for you.
If liability is denied, we will review the letter with our medical experts. If we still consider you have a strong case, we will obtain a medical report on your condition and prognosis and will then issue court proceedings, sending out a strong message of confidence in your claim’s strength.
If liability is denied, or if a settlement has not been reached then 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 you 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 your claim, setting out your condition and prognosis
(d) A Schedule of Loss – a formal document setting out the details of your past and future loss and expenses incurred due to the injuries sustained
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 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.