Aspects of the clinical negligence legal process explained

Your guide to understanding the processes and procedures of a claim once it is underway.

The claims procedure begins with a request for disclosure of the records.

Letter of claim

If, after disclosure of records and taking expert advice, the claimant decides to proceed with a claim, their solicitors will send a letter of claim to you - or, more probably, to the MDU as your representative. The letter must give a detailed description of the claim.

The claimant should not issue formal proceedings until four months from the date of the letter. This gives you and the MDU a further opportunity to consider the claim fully. We will take expert medical and legal advice on your behalf and discuss our views with you.

Letter of response

A letter of response must be provided within four months of the letter of claim. We will prepare this on your behalf and with your co-operation.

In some cases, and only with your agreement, we may say the claim is admitted, either in part or in its entirety. Any admissions made will be binding. We will offer to settle the case on your behalf and negotiations will then begin.

If the claim is going to be denied, clear and detailed reasons must be given so the claimant can consider their position. Your arguments may persuade the claimant to withdraw.

The aim here is to ensure that both sides have every chance to resolve a dispute informally. It is open to either side to suggest alternative ways of resolving the dispute at any time up to the start of formal proceedings.

Formal proceedings

If the claim can't be informally resolved, the claimant may begin formal legal proceedings by issuing a claim form. The claimant must deliver ('serve') this within four months of its issue. The solicitors instructed to act for you will usually accept it on your behalf, and we'll let you know when this happens.

Very occasionally, the claimant's solicitors or the court may serve proceedings in person. We take all possible steps to prevent this, but in the unlikely event it happens, there are only 14 days in which to acknowledge that the documents have been served. Pass them to the MDU immediately, otherwise a judgment may be lodged against you.

Particulars of claim

Particulars of claim must be sent with the claim form or served within 14 days. These repeat the details of the claimant's case and state the amount of damages sought. In most cases they must be sent with a medical report about the personal injuries alleged in the claim.

Defence

A detailed response to all aspects of the claim (a 'defence') and a signed statement of truth must be given to the court 28 days, at the latest, after the particulars of claim are served.

The court now takes charge of the case, and serves an allocation questionnaire for each party to complete. When it receives the completed questionnaires, the court allocates a claim to a 'track'. Which track depends largely on the complexity and the value of the case, but the court may take the wishes of both sides into account.

There are three tracks:

Fast track: for personal injury claims of between £5,000 and £15,000, and where the court considers that:

  • the trial is likely to last no more than one day, and
  • oral expert evidence at the trial will be limited to one expert for each side of any one discipline, and not more than two disciplines.

The case will run to a strict timetable imposed by the court and the trial will take place within 30 weeks of the case being allocated.

Multi-track: for claims above the fast track ceiling and/or greater complexity.

The court manages the claim and sets a timetable for exchange of witness statements and expert advice. This will include a likely date of trial, to be fixed later. The court will set up a case management conference, often at an early stage, or give directions for the further conduct of the case.

The case management conference is attended by both sides and/or their representatives. At these meetings the judge will review the steps taken by both sides, ensure that they have narrowed down the issues as far as possible and consider alternative ways of resolving the dispute. The court will try to ensure that costs are kept in proportion.

Most clinical negligence claims will be allocated to either the fast or multi-track.

Occasionally, a third track for small claims will be used, but we will give you details of this if needed.

Disclosure

During the proceedings you must disclose copies of all the relevant documents you hold to the claimant's solicitors. Your solicitors will advise you and will do this on your behalf. You will be asked to:

  • make a disclosure statement confirming you have carried out a reasonable and proportionate search for all documents you're required to disclose
  • confirm you understand the duty to disclose and that, to the best of your knowledge, this has been carried out.

Your witness statement

If formal proceedings are issued against you, then the MDU needs to mount a defence. The cornerstone of this is your witness statement. To prepare this you may be asked to visit the solicitors dealing with your case before proceedings are issued.

The MDU has its own in-house legal team, but we also use external firms of solicitors who are experts in clinical negligence litigation.

The witness statement is your signed factual account of events. It is an important document as it will be used if the case goes to trial.

  • The document will be shown to the claimant and lodged with the court, so it's essential you are completely satisfied with its accuracy and detail.

Your solicitor will help you put your statement together, but it is your evidence alone and shouldn't contain anything you are not entirely satisfied with. You are obliged to sign a statement of truth which will form part of the document.

Expert reports

Experts are doctors with a broad experience of a particular field of medicine and medico-legal work. They are usually still in practice or have recently retired. The expert will comment on your management in general compared to what would be expected of a reasonable practitioner in your specialty and with equivalent experience. See our background to litigation for more information.

The process of clinical negligence litigation depends on reports from independent expert witnesses. The MDU may ask an independent expert for their opinion on whether there is any potential liability related to your clinical management. This will happen quite early in the case so you and the MDU can be guided by the expert's advice. The MDU initially instructs experts from your own specialty - so if you're a general practitioner, we will ask a general practice expert for an opinion.

An expert may also be asked to give an opinion on causation. The aim is to establish whether there is a causal link - that is, that the alleged negligent act or omission led to the harm that the patient claims resulted. If there is no link, then you would have what is called a 'causation defence'.

  • For example, a patient might seek compensation for a depressive illness following excessive scarring after surgery. The doctor might admit to a deficient surgical technique, but still have a causation defence if it can be shown that the depression was due to other factors.

The expert's duty is to give dispassionate advice to the court, and isn't there to plead the case of the party who instructed them - that is the job of the lawyers.

Experts generally give their advice in a written report. If the case proceeds, the court may ask the expert to give oral evidence. Both sides may put written questions to an expert about their report, and these must be answered.

As it's the expert's duty to advise the court, they may ask the court for directions.

Exchange of evidence

Witness statements and expert reports are exchanged at this stage, giving the MDU the opportunity to re-evaluate the merits of the claim with you.

Meetings with counsel

One of the most effective ways of assessing your legal case is to have a meeting with the barrister(s) representing you.

This meeting, usually referred to as a conference (sometimes shortened to 'con'), is chaired by counsel (a barrister) instructed by the MDU. It is usually held in counsel's chambers.

These meetings can sometimes seem rather daunting. It's quite common for six or more people to attend, including your barrister(s), solicitor, experts and a member of the MDU team.

However, the meeting is entirely informal. Counsel will have reviewed the papers beforehand, and will usually begin by talking through the events of the case, asking for clarification of the facts from you and comments from the experts.

  • Counsel may play devil's advocate and will likely ask you to see it from the claimant's point of view to get your reaction. Do not take this personally - remember, everyone has your best interests at heart.

The meeting is a chance to explore your own views about the case in detail, to voice your concerns and to have your questions answered. Don't be afraid to ask for any points to be explained. A clear plan usually emerges on how to proceed and we will ask you for your agreement to it.

Defend or settle?

  • Sometimes, non-clinical factors mean a case cannot be defended. The most common factor is lack of adequate clinical notes - or it may be that on this occasion, the member's management can't be defended successfully.

In such cases, and after consulting you, we will negotiate a settlement on your behalf, usually without admitting liability. In some cases we may need to admit liability or acknowledge that there has been a breach of duty to achieve an out-of-court settlement.

It is our policy to involve members in conducting their own case and to take the decisions you want whenever possible, but we can't mount a defence without your full co-operation. Time is of the essence and letters must be answered quickly. Occasionally, a member may ask us to settle a claim that we feel should be defended, or vice versa. After discussions we are usually able to agree a common way forward.

Trial

Given the complexity of the legal system and the fact only a minority of cases go to trial, we have not looked at the process of trial in this guide. But in the unlikely event of your case going to court, you can be assured of the continuing, personal support of the MDU's staff and your legal team.

This page was correct at publication on 15/01/2020. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.

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