The Brain Injury Claims Process | Serious Injury Solicitors | BBK The Brain Injury Claims Process | Serious Injury Solicitors | BBK

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The Process for Brain Injury Claims

Read below for the claims process if your brain injury was due to negligent medical treatment. If your brain injury was the result of an accident, our process for accident claims page may be more relevant to you. 

Arranging funding

Once you’ve contacted us and have been assigned 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 or a “no win, no fee” agreement. 

Investigating your case

Well then request copies of your medical records and GP notes from the hospitals where you received treatment. We’ll review these thoroughly to identify the specific incidences of substandard treatment that resulted in injury. Well also identify each of the potential defendants in your case. 

To successfully bring a claim, your specialist medical negligence solicitors will need to prove that: 

  1. The medical professionals who treated you provided substandard treatment, such as a delay in treatment or diagnosis. 
  1. That, as a result of that substandard treatment, you have suffered injury and financial loss. 

Experts' opinions

If we feel that your medical records are supportive of a claim, well 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 you received substandard treatment by medical professionals in more than one discipline. Well also ask the appropriate medical expert(s) to report on whether any of these incidences of substandard treatment resulted in you suffering an injury. 

Setting out the details of your claim

We’ll then draft a formal “letter of claim” to the medical professional(s) or NHS Trust responsible for the substandard treatment. The letter of claim will set out in detail the circumstances surrounding your treatment, the specific allegations of negligence you are making against the Defendant(s) and the particular injuries and losses you have sustained. 

The Defendant will have 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 it can be difficult making a claim against an NHS Trustor medical team, if you’re still receiving treatment from them. We understand the importance of maintaining a good relationship with your treating medical team and are used to handling these situations. 

Response from the defendant

If liability is admitted, well arrange for you to be assessed by a medical expert who will provide a formal report on your condition and prognosis. We’ll also need to carefully consider your past, ongoing and future requirements and where appropriate, commission expert reports on your current and future care, therapy, accommodation, assistive technology and any other needs to enable us to accurately value your claim.  

If the experts are able to give a firm prognosis, well carefully discuss everything with you in order to make a formal offer to settle your claim to the Defendant. If you require treatment and therapy before the claim can be quantified, well request an interim payment to fund this. In appropriate cases, we can also arrange for qualified case manager to manage and coordinate a care and therapy package for you. 

If liability is denied, well consider the letter of response with our medical experts. If we still think you have a strong case, well obtain a medical report on your condition and prognosis and consider issuing court proceedings. This sends out the strong message that were willing to allow your claim to be determined by a judge at trial. We’ll also do this if we’re unable to reach a settlement with the Defendant. 

Potential court proceedings

If liability is denied, we may need to issue court proceedings, and will need to prepare the following documents: 

(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 an 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 Condition and Prognosis 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 your injuries. 

Once the Court has issued the Claim Form, we have four months to serve all of the above documents to 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. 

Preparing for your trial

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, narrowing the issues and/or value your claim. Such steps include disclosure of relevant documents, exchange of witness statements, exchange of experts’ reports and the costs budget approved for the case. The Defendant may be granted permission to instruct its own medical experts in the same discipline as your medical experts. The court will also list the case for trial. 

As we prepare your case for trial in accordance with the court timetable, well continue to consider whether a settlement can be reached. If the parties are unable to negotiate a settlement, a judge at trial will ultimately decide the claim. Please be reassured that many cases settle without trial. The court will usually require parties to consider alternative methods of settling a claim. For example, a round table settlement meeting will be scheduled where both parties and their representatives meet with a view of negotiating a settlement face to face. 

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Do I have a claim?

If you suffered a brain injury due to substandard treatment, it may be possible to make a compensation claim.

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