Bringing a medical negligence claim

We understand that every individual is different, with their own circumstances, concerns, and needs.  That is why every Tees medical negligence client has their own dedicated team of specialist medical negligence lawyers.  That team invest in getting to know you, not just your case. Ensuring that we understand what matters most to you, means that we can offer you to best advice and work closely with you to secure the best possible outcome for your case. 

This guide is designed to provide some general information about the process. Whilst some steps are mandatory, others are not and there is no “one size fits all.”

Stage 1: Initial assessment

Our initial assessment team includes a specialist medical negligence lawyer with over 40 years of experience, a clinical advisor, and the head of the department. 

1. The specialist lawyer offers our initial advice as to the best way forward.

2. We advise on different ways of paying for the investigations into your case.  Usually, clients choose a “No Win, No Fee” agreement as this means that they can pursue the case without having to pay anything as the case progresses and without any financial risk. 

3. We confirm your address and verify your identity so that we can apply for copies of key medical records.

4. We apply for copies of key medical records and review these alongside any complaints documents or incident/investigation reports.

5. We may then explore your case with one of our medico-legal experts to canvas their views on whether the care you received was negligent.

We assess the case and advise you whether a legal case is likely to succeed. If we are unable to help, we will signpost you to other organisations who may be able to help

Stage 2: Investigations 

If we consider the claim is likely to succeed, we will

1. Apply for all your medical records and arrange for these to be organised in such a way that makes them easier to read, for us, the experts and the courts. 

2. Prepare an initial statement based on your recollection of events.

3. Instruct independent medical experts to advise whether the care you received fell below an acceptable standard and whether this caused, materially contributed to, or worsened your condition. In some more complex cases, we will need to instruct several medical experts.

4. Review all the evidence and advise you whether your case is still likely to succeed in the light of the material gathered.

These investigations can take some time, depending on how many expert reports are needed and how quickly the medico-legal experts can provide their reports.

Stage 3: Before starting court proceedings ('Pre-Action)

Once supportive expert evidence has been obtained:

1. We notify the defendant (for example, the hospital or GP) in a letter of notification and then a more detailed letter of claim, which sets out why we believe the care that you received was negligent and what harm this caused.

2. The defendant has four months to respond with their letter of response. They may deny they are responsible, or agree they are liable for some or all your injuries. They may offer you compensation to settle your claim or an interim payment of compensation.

3. We consider their response. If the defendant admits liability in full or in part, it may be possible to explore a settlement. If admissions are not made, we invite the medical experts to consider the points they made in response, to see whether they still support your claim.

4. We often meet with a barrister and the medical experts (this stage is known as ‘conference with counsel’) to test the evidence in detail to make sure that your claim is strong enough to proceed.

Stage 4: Start court proceedings ('issuing the claim')

At all stages of the claim, we always consider alternative dispute resolution methods, such as mediation. If it is not possible to resolve your claim, whether because the defendant denies the claim, or because we are not able to agree an appropriate amount of compensation, court proceedings will be started. This does not automatically mean that your claim will go to trial - in fact, very few cases ever have their day in court.     

The steps involved in starting court proceedings are:

1. Preparing the claim for submission to court

• a claim form (the official document that needs to be issued at court to start your claim).
• The particulars of claim (a statement of your case), which will set out the allegations of negligence.
• A preliminary schedule of damages which will set out the specific financial losses incurred as a result of the alleged negligence and an estimate of the likely future losses, such as loss of income.
• Medical reports on your condition and prognosis.

You will need to approve these documents and sign a statement of truth confirming the documents are true and accurate before we send them to the defendant.

2. Issuing proceedings by submitting the claim form to court.

3. Serving proceedings by sending the claim form, particulars of claim, preliminary schedule of loss and condition and prognosis reports to the defendant (this must take place within four months of the claim form being issued at court).

4. Filing proceedings with the court.

Tees will prepare all of these documents on your behalf and will submit them at the appropriate time. 

Stage 5: the court timetable

Once court proceedings have been started:

1. The ‘defence’ serve their papers with the court. Usually, this is within 1-4 months after our papers have been served.

2. The court sends out a questionnaire to all parties, asking for information about the case. This helps the court consider how best to manage the case.

3. A court hearing (called a costs case management conference) is held. Your solicitor and/or barrister attend that hearing on your behalf. At this hearing the court will give numerous directions which everyone involved must follow to prepare the case for trial. In most cases, the court also allocates both sides a budget for the costs that each side is allowed to incur going forwards. This ensures that costs are kept to a minimum and that you are able to keep as much compensation as possible, should you win the case. 

Key directions include:

• Disclosure and inspection: Both parties provide the other side   various documents to support their case. 
• Exchange of factual witness evidence: The parties exchange witness statements from the people they intend to rely on in court. This includes the healthcare professionals responsible for your care.
• Exchanging expert evidence: We give the defendant our expert evidence, and they give us theirs.
• Experts’ meetings: The experts meet to discuss the case and try to narrow the issues before trial.
• Service of the schedule: this document sets out how much compensation you seek and why.
• Service of the counter-schedule: this is the defendant’s response to your schedule. It sets out how much compensation they believe you should receive if your case is successful.

4. Trial is usually within 18-24 months of the claim form being issued.

As your case proceeds, we will proactively seek opportunities with the defendant's lawyers to explore a settlement. 

There will likely be at least one further meeting with a barrister and the experts during this stage.

Stage 6: Trial

Medical negligence cases rarely go all the way to trial. However, we always prepare your case as if it will go to trial - Just in case.

If there is a trial, a barrister will represent you. The judge will hear evidence from witnesses for both sides as well as the evidence of the independent experts. The judge will then decide whether or not the claim succeeds. The trial length depends on the number of witnesses and the case's complexity but can range between 2-15 days.

Settlement

Negotiation or alternative dispute resolution (ADR) settle most cases out of court. The most commonly used forms of ADR in medical negligence cases are ‘joint settlement meetings’ where the parties come together to see whether settling the case or mediation is possible. In this case, a mediator works with the parties to find a solution everyone is willing to accept.

There are other benefits to mediation, including non-monetary remedies, such as an apology, which are not necessarily achievable through litigation. ADR can be used at any time in the case, although it is more likely to be successful at certain key stages.

You will be fully involved in the process in whatever way the settlement is achieved.

Valuing your claim

We will also investigate and advise on the amount of compensation you could be entitled to. The purpose of compensation is to return you, as far as possible, to the position that you would have been in if the medical negligence had not occurred.

In many cases, we will not fully investigate how much compensation you will likely receive until the preliminary medical issues have been considered. However, we will usually be able to provide you with a broad outline at the beginning of the case. To be more precise, it takes time because we will need to obtain evidence to support your claim.

It may be possible to obtain an interim payment of compensation from the defendant to help you purchase specific items such as care, a wheelchair, a car or a house that is suited to your needs. This is usually only possible if the defendant has accepted liability for your claim.

At the end of the case, compensation may either be paid as a single lump sum, ongoing annual payments (periodical payments), or a combination of the two.

You may be awarded provisional damages. This is when there is a possibility that your injury will get worse in the future. The court can make an order allowing you to return to court should things worsen.

We hope you have found this information helpful. Of course, your specialist lawyer can answer more detailed questions once we get to know you and your situation. 

Meet the team

There is more to Tees

Tees provides expert legal services and independent financial advice – so our expert advisors can also help you in other ways. If you receive compensation, we can help you manage the money and advise you on matters concerning wills, lasting powers of attorney, property, family law, and education and employment law. Your medical negligence lawyer will remain your foremost contact throughout, but they can introduce you to other experts should you need them and wish.