Alternative dispute resolution

There are several alternatives to litigation to resolve disputes.

The NHS complaints procedure, where the patient seeks an explanation rather than compensation.
Mediation is a form of assisted negotiation through an independent neutral party.
Arbitration by an independent neutral party.

Application on behalf of a patient for medical records for use when court proceedings are contemplated

This is a standard form which may be sent by a solicitor to a doctor when seeking disclosure of his client's records for the purpose of a claim. It may or may not be accompanied by a letter.

Breach of duty

In order to succeed in a claim for damages alleging negligence against a doctor, the claimant must show to the court's satisfaction:

that the defendant owed the claimant a duty of care; it is accepted that treating doctors owe this duty to their patients
that the defendant was in breach of his duty of care towards the claimant; this is a question decided by a judge with the help of advice from experts called by both sides.

Case handler

The MDU member of staff responsible for investigating, negotiating and advising members on claims and potential claims.

Causation

Not only must the claimant show that the defendant was in breach of his duty but also that this breach led to the injury the claimant alleges. A causative link must be established for the claimant to recover damages.

Civil proceedings

Broadly, in the context of clinical claims, any action seeking damages for recovery of losses as a result of breach of duty, or of failure to comply with a contract, is dealt with under the rules of civil procedure. The claimant, usually through his solicitors, lodges the necessary documents together with the appropriate fee at court. The claim form is stamped to acknowledge that proceedings have been formally issued. The claim form is served on the defendant or his representative.

Claimant

The person bringing a claim for damages.

Claim form

The formal document issued in the court to begin proceedings.

Conference

A meeting between counsel (see below), the solicitor, medical experts, the case handler and the MDU member. The aim is usually to consider issues about the evidence and to assess whether the action is defensible.

Counsel

The term used within the legal profession for a barrister. Barristers can be categorised broadly as leading counsel (otherwise known as Queen's Counsel, QC, or silk) and junior counsel.

Date of knowledge

The date on which the claimant knew, or it is deemed by the court should have known, that he has suffered an injury which could have been caused by the negligent act or omission of another.

Defence

The formal document served on behalf of the defendant setting out his defence to the allegations in the claim form.

Exchange of witness statements

Among the court's directions for the conduct of the litigation is that both sides exchange statements from witnesses upon whom either party will rely at the trial.

Expert witness

An expert witness is instructed by one or both sides in an action to give an independent opinion on whether there has been a breach of duty and/or whether this has caused the claimant's alleged injury. More than one expert may be needed to give advice on different issues. As with statements from witnesses, reports from experts are exchanged during the proceedings.

Legal funding

A claimant does not necessarily have to fund a case privately. For instance, they may have a private insurance policy, or be eligible for Legal Aid. Alternatively claimants may enter into a conditional fee arrangement with their solicitors by which payment of legal fees is related to the eventual outcome of their case.

Letter of claim

This is a letter from the claimant's solicitors which must be sent not less than four months before the issue of formal proceedings. It should:

include a clear summary of the facts, a chronology and the main allegations of negligence
describe the claimant's injuries
outline the financial loss
refer to relevant documents.

Liability

It is the court's job to decide liability. In civil proceedings a judge sitting alone decides liability, with the help of expert advice and evidence from witnesses. To establish liability, the claimant must prove on the balance of probabilities (i.e. more likely than not) that there has been a breach of duty which caused the alleged injury.

Litigation friend

A litigation friend is the legal term for a person who gives instructions on behalf of a child or an incompetent adult.

Particulars of claim

A document accompanying the claim form (or served within 14 days thereof) giving details of the claim.

Particulars of negligence

These are laid out in the particulars of claim. The claimant has to say exactly how he alleges the defendant was negligent.

Pre-action protocol

This is a protocol setting out the steps which the potential claimant and defendant must take to resolve the dispute, if at all possible, before proceedings are issued. The aim is to encourage greater openness between the parties and to reduce delay, costs and the need for litigation. If proceedings are issued, the court may penalise either side if they have failed to comply with the protocol.

Service of proceedings

To begin an action the claimant must ensure that proceedings are served on the defendant within four months of being issued. This is usually done by post, addressed either to the defendant or to his solicitors. The claimant can apply for this time to be extended.

Statement of truth

The defence and witness statements served on behalf of a defendant in clinical negligence proceedings must contain a signed statement of truth reading as follows: 'I believe that the facts stated in this defence/witness statement are true.'

Statute-barred

Statue-barred means that the time limit allowed by law for bringing the claim has expired. The time limits for different types of claim are set out in the Limitation Act 1980.

Clinical negligence: glossary of legal terms

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