Every patient has the right to complain about treatment received. The NHS Trust or health authority which provided the treatment is obliged to investigate promptly and respond. Nevertheless a major subject of concern considered in the Chief Medical Officer’s reform proposals was the current NHS-wide complaints procedure which has been in operation since 1996 and the key feature of which is a strong emphasis on local resolution of complaints.

 

   If you are not happy with your treatment, or, indeed, any matter connected with the provision of services at your GP’s surgery or a hospital, but you are looking for a full explanation, perhaps an apology, you must use the present system. This is criticised as lacking independence, frequently failing to yield an apology or explanation, being biased and unfair.  It has even been said that many complainants, frustrated at the complaints system, resort to making legal claims which means, under the NHS rules, that the complaints procedure will be immediately halted!

 

   The whole area is scheduled for reform – in fact, the Legal Services Commission, which oversees the provision of public funding – formerly “legal aid”, has stated that this is so urgent that it should be done before any other reforms are considered.

 

The existing procedure

 

Minor complaints: If you have no serious injury, or you feel that you have been treated rudely or ignored, the quickest and most economical option is to write informally to the doctor, surgeon or other health carer for an explanation, remembering to keep a copy. You would probably be invited to an informal meeting which, with today’s expressed aim on speedy resolution of disputes in the NHS, may well resolve matters.  You need to be aware however that an apology from a doctor or NHS Trust does not mean that you have a valid claim for clinical negligence.

 

   If you are still not satisfied, or your complaint and injury are serious, then you could contact the Patient Advisory Liaison Services (PALS) www.dh.gov.uk/PolicyAndGuidance/OrganisationPolicy/PatientAndPublicInvolvement/PatientAdviceAndLiaisonServices/fs/en at the hospital concerned.  PALS, which replaced the Community Health Councils (CHCs), were heralded by the Department of Health as a “new era in patient and public involvement in the NHS”  but it is early days to assess their service. If you wish to pass on your own experience, whether positive or negative, of this service, we would like to hear from you. Email editor@medneg.com.

 

   The CHC’s duty was to recommend improvements to NHS services in its area and consider the individual patient’s case. The CHC could refer the patient to the appropriate channel for his or her complaint and probably to a specialist solicitor in the area. Whether this will be available from the PALS remains to be seen.

 

   Confused? That’s not all: the government has established a new Commission for Healthcare Audit and Inspection (CHAI) www.healthcarecommission.org.uk/Homepage/fs/en, known as the Healthcare Commission, independent of the NHS and Department of Health, which has independent scrutiny of complaints as one of its functions.

 

   NHS Trusts, hospitals, health authorities and general practitioners have a duty to set up, and publicise to patients, a complaints procedure, usually under a Complaints Manager, who should be readily available. Complaints should be made within six months of the date of the medical accident complained of, or within 6 months of the date when you knew of your injury provided that is within 12 months of the accident. Those dates can be extended at the discretion of the Complaints Manager.

 

   If you complain under the NHS complaints procedure this should be done as soon as possible while memories are fresh. But beware: at present NHS complaint investigation procedures are not available if disciplinary procedures are being taken or if you have stated, in a letter or orally, that you intend to take legal action. If you decide to ask a solicitor to act for you in making your complaint – work, by the way, which cannot be funded through legal aid - this may be taken as evidence of such an intention.

 

   The unfairness of this rule was recognised by the Chief Medical Officer in his report Making Amends  published on June 30, 2003. It is scheduled to be abolished.

 

Step 1: Local resolution: Make your complaint, orally or in writing, to the person responsible locally (usually the Complaints Manager) at your GP, NHS Trust (hospital), or dentist. If you do not want to go to directly to the GP’s practice you can ask the Complaints Manager at the local health authority (his details will be with the GP) to mediate.

 

   You should receive acknowledgement of a written complaint within three working days and may be invited to a meeting with the health care provider within 10 working days. The complaints team will investigate - obtain the medical records and notes, interview staff and provide an explanation. If you are dissatisfied ask for a written explanation. Your complaint should be answered within three weeks.

 

Step 2: Independent Review:  If you are not satisfied with the local resolution you may now seek an Independent Review from the Healthcare Commission above.

 

   If your request is refused, or if you are dissatisfied with the panel report, you can complain to the Health Service Commissioner for England (Health Service Ombudsman) www.ombudsman.org.uk. Her function is to investigate and report clinical and family health service complaints; complaints about health authorities and health carers, and make recommendations. But she will not usually investigate your complaint unless you have first made your complaint through the NHS complaints procedure. She will not investigate if you have a remedy in the courts unless she is satisfied that it was unreasonable to expect you to resort to litigation.

 

The complaints system and litigation

 

   One objective of the complaints procedures outlined above was to avoid litigation. Nevertheless the procedure may provide evidence on which a decision can be taken whether or not to bring a legal claim. In fact funding from the Community Legal Service fund may be refused to a clinical negligence claimant unless it has been established that the NHS complaints procedure has been used – a Catch 22 situation which explains why some solicitors may be rather coy in letting the NHS Trust know they have been consulted.

 

   If you were a private patient you cannot make use of the NHS complaints procedures. You should make your complaint directly to the doctor, surgeon, private clinic or hospital concerned. Normally the situation is that the patient has a contract with the doctor or surgeon who uses the clinic’s facilities. All the parties should be insured for liability risks and if you make a claim for damages that will be passed on to the insurers.

 

Internal inquiries under the Clinical Negligence Scheme for Trusts www.nhsla.com/Claims/Schemes/CNST

 

   Since 1995 NHS trusts should have an effective procedure for reporting and investigating any serious clinical incident. The purpose of the inquiry is to establish the facts and consider whether action is required to avoid a similar incident. Yet another quango, the National Patient Safety Agency www.npsa.nhs.uk, is supposed to collate these incidents, yet this organisation, as with every other NHS quango, has recently been listed as subject to being axed!

 

   Once preliminary findings are made by an inquiry team an internal inquiry may be held. The patient should be kept informed of the problem and the result of the inquiry. A solicitor acting for the patient would be entitled to a copy of the inquiry proceedings and decision.

 

   Other helpful organisations include:

 

Charitable organisation: A number of charities have been set up as action groups for certain interests and medical conditions. Many of these are listed in the Health and Social Services Year Book published annually by the Institute for Health Service Management website: www.ihm.org.uk.This book will probably be in your local reference library. The encyclopaedia of charities on the internet website: www.charitychoice.co.uk has thousands of UK charities with contact information and direct links to those with their own websites.

 

Citizen’s Advice Bureaux (CABs) www.citizensadvice.org.uk/macnn/. Once you have told your story, your local CAB worker should provide, without charge, general guidance on the law and direct you to other local organisations. You can find the address and telephone number of your local CAB on the website or in the local telephone directory, library or town hall.

 

The Patients’ Association. Can be contacted at PO Box Box 935, Harrow, Middlesex, HA1 3YG tel: 020 8423 9111 fax: 020 8423 9119 helpline: 08456 084455 website: www.patients-association.com. Its aim is to further the interest of patients.

 

General Medical Council (GMC). The GMC, which has a range of disciplinary powers from warning a doctor to striking off from the Medical Register, is concerned with a doctor’s standards of professional conduct, his fitness to practice and the protection of patients. If you believe that a doctor has committed serious professional misconduct - Has he behaved so badly that he should not even be practising? - or that his performance appears to be seriously deficient you can address your complaint to the Fitness to Practice Department (FPD), General Medical Council, 178 Great Portland Street, London W1N 6JE. Tel 020 7580 7642 fax: 020 7915 3641 website:  http://www.gmc-uk.org.

 

Complaints about dentists should be addressed to the General Dental Council at 37 Wimpole Street, London, W1M 8DQ Tel: 020 7887 3800; fax: 020 7487 2643; website: www.gdc-uk.org.

 

Complaints can be made to the General Medical Council and General Dental Council when it is not appropriate to sue, for example, where you have been injured by substandard medical treatment but your injury is minor, or you feel that you have been ignored.

 

Your Member of Parliament: If you feel that you are getting nowhere with your case or that you have suffered an injustice you could ask your MP, by writing or attending one of his or her clinics, to consider taking up your case.

 

The media: Following a number of recent medical scandals and the political aspects of the NHS, media interest in clinical negligence is high. NHS Trusts are anxious that their services are not perceived as substandard. If you want attention drawn to your case it could be worthwhile contacting your local or national newspaper, radio and TV stations.   

What will happen at the first interview?

 

Clinical negligence claims are often complex and difficult to handle, not because the law is particularly complicated – few of these cases involve legal issues - but because the clinical aspects, which will depend on the evidence of medical experts backed up with learned texts and papers, may require extensive research and study. 

 

No clinical negligence case can be guaranteed to succeed in court.

 

     Fortunately, few clinical negligence cases ever get to court but they should always be handled by an experienced solicitor who has passed a rigorous assessment of his or her experience and skills. Many cases have been lost – sometimes with clients’ and public money squandered - because non-specialists have been instructed who were unaware of the many pitfalls in this field.

 

     The firms of solicitors on this website include

    

• firms with personnel who have been admitted to the Law Society’s Clinical Negligence Panel; 

 

• firms which hold a Legal Services Commission Clinical Negligence Franchise and can offer funding from the Community Legal Service Fund (formerly known as legal aid).

 

     All these firms have a record of success in handling clinical negligence litigation.     

 

   As we shall explain later on this website

[How is your claim investigated] [Why do you need "counsel"] it is vital that your solicitor has access to     

 

(a)   a cases database with all significant reported court judgments on clinical issues;     

 

(b)   a constantly updated list of top quality medical experts, each with extensive knowledge of his or her own specialism and with a successful track record of advising and testifying in clinical negligence litigation.  It is the medical expert who will consider your claim and its documentation. He or she will advise on whether there is proof of negligence and causation (ie, whether the negligence caused or materially contributed to your injury).   In the event of the case going to trial your expert(s) will probably have to give evidence to guide the court, under rigorous cross-examination by counsel (the barrister) for the defence;     

 

 

(c)   counsel (barristers) of proven experience – and with a good track record - to advise on your claim, represent you in negotiations with the NHS’s legal team and, if the case does go to trial, argue your case in court.     

 

   Only Medical Litigation Online has the extensive databases providing this information, which is why most leading clinical negligence practitioners acting for claimants subscribe to our services. Those firms are shown on the map of the United Kingdom on our home page and can be quickly accessed by clicking on the coloured area most convenient geographically to you - although most firms will send a representative to you if necessary. These firms have provided further information which could guide you in making a choice.

 

   Unlike so-called “claims farmers”, we receive no payment if you contact any firm of solicitors on this website – each Firm pays just £150 in addition to its £180 Annual Subscription to www.medneg.com to appear on this website. This modest revenue enables us to provide these constantly updated databases of information free to you and all other browsers.     

 

   A word about “claims farmers” and “ambulance chasers”. These disparaging terms came to be applied to companies and solicitors which advertised extensively in the media for people with personal injuries. Where there was blame, they claimed, you could make a claim – and it would not cost you a penny because the claims were run on a “no win, no fee” basis. As it turned out this was not always so and many clients were reported as receiving only a fraction of the damages to which they were entitled. Fortunately, because of the complexity and risk involved in clinical negligence few of these companies were prepared to handle such cases.

 

     Read the experience of one injured patient who contacted us, Ken Woodhouse.  He first approached a leading firm of solicitors in Manchester by phone. That firm, he was told by many, was the “real hot shot firm” in  clinical negligence and seemed to be regularly featured in the major Manchester evening paper. He explained the situation over the phone and two weeks later received a letter telling him they would not take the case. Next he talked to another, smaller firm. He had an immediate free interview and the result at the moment is that his counsel advises that he has an 80% chance of a six-figure compensation. A lot of hard work and time has been put into the case and he had a feeling that the larger “flash” – Ken’s description - firms are not so interested in such cases. Obviously, he was very pleased he was initially turned down.

 

   Ken’s case worried us. Are some of the so-called leading firms in fact using advertising to attract many of those who have suffered through medical blunders and then proceeding only with those cases which are almost certain to win? Ken did feel that such “cherry picking” took place in his case. For example, he said, the only case of any similarity happened in 1958, involving considerable research.

 

   It must be accepted that “no win, no fee” in clinical negligence cases can be very risky  - probably too risky for some of the panel firms who can run cases, with little risk to themselves, on legal aid. It is  understandable in any business  activity that the financial risk should be kept as low as possible. But this is bound to result in some cases, unable to qualify for legal aid, being turned down even though the solicitor knows that they could probably succeed.

 

     We feel that this whole subject is not being fully debated. We would welcome views on this issue – in fact our Forum on this website enables those such as Ken to share experiences. If patients with reasonable claims are being turned away by panel solicitors to keep their success rates up this is a serious matter for concern, possibly investigation by the Lord Chancellor’s Department and Legal Services Commission. Otherwise justice is not being fully done, despite the government’s reforms.    

 

Contacting the firm - the first interview

 

   When you contact the firm ask for the contact given on our website or the Clinical Negligence Department. Say that you want advice on a possible clinical negligence claim, giving brief details of what happened. If you are disabled and unable to travel or use stairs tell them so - solicitors are prepared to travel in most circumstances - and ask how much an initial interview will cost you if it is not free. If  you are dissatisfied with the initial contact e-mail us editor@medneg.com so that we can record your comments about the firm.     

 

   Some solicitors may be considering not so much whether your claim is worth taking on but whether they want to do business with you. They may be mindful of the comment of Lord Justice Buxton on the litigant in Cornelius v de Taranto MLC 0218, (Court of Appeal: December 18, 2000):  

  

“ … the claimant … has pursued the litigation with unbending determination.  At stages she has had to prosecute her claim as a litigant in person.  It is a manifestation of her psychological make-up that her determination to right the wrongs, as she sees them, done to her has become obsessional with the result that she approaches many aspects of the case with a lack of balance, realism and objectivity.  Her obsessional attitude makes it difficult for her to distinguish between right and wrong and truth and falsehood.  She is unable to accept in fairness to the defendant that her [the defendant’s] mistake was well-meaning and not malevolent.”     

 

   At your first interview take all the information and evidence you have and a concise written statement, stating chronologically, in your own words, all relevant events, with dates, before and after the accident, the names of any health carers and other witnesses. Your solicitor also needs to check whether you already have legal expenses insurance perhaps in your householders, motor or legal liability insurance policies. Does it cover claims for medical negligence? What are the terms? Do you belong to a union which provides legal expenses cover for its members? Take your policies along to your solicitor and have them checked.     

 

    The interview will take about an hour. You should be made to feel welcome and put at your ease but your solicitor is unlikely to advise whether you have a valid claim until it has been initially investigated. He or she should, however, tell you whether it is worth investigating further. You should be warned of the difficulties, for example the need for a medical expert or experts, the law, the costs, the likelihood that the claim may not be resolved for anything up to four years – possibly longer.

 

   If your injury is not serious he or she should ask you what you want to achieve. If you are worried about making a complaint against a doctor who is still treating you the solicitor can advise on your options.     

 

   An experienced solicitor may, and if you do not qualify for state funding, probably will, advise you to use the NHS Complaints Procedure before reaching a decision on litigating your claim. This is because the cost of obtaining even an initial expert medical opinion on your case may be high (£250 to £750) but an independent review panel report - and all the documents prepared for the panel - will cost you nothing.     

 

   Remember: the NHS Trust is entitled to refuse any complaint if it suspects that you intend to sue. In fact some NHS Trusts require you to sign a declaration that you do not intend to sue after complaining. Your solicitor will have the experience to advise on the particular circumstances of your case.

 

Your written proof

 

   After hearing your story, and questioning you to ensure that he or she has a clear picture, your solicitor will take a written proof which will state every detail you can remember.  You can now see the value of any notes you made before, during and after the time of your medical treatment.  Your solicitor will need to know, with dates and places,     

 

-         why you sought medical treatment in the first place and whether you had any earlier relevant medical problems;     

 

-         the names of all doctors and other health carers involved, including doctors before and after the treatment complained of;     

 

-         what the doctors asked you, what diagnosis was made, the advice you received and what treatment was prescribed;     

 

-         whether you were given any explanation of the treatment, warning of the risks involved, advice on alternative methods of treatment and information on the likely outcome if you did not receive the treatment;     

 

-         the names of all relevant witnesses, whether to the consultation, treatment or relatives you told about the treatment;     

 

-         what was said at any later medical consultation;     

 

-         whether you have made any complaint either through the NHS procedures or to the doctor concerned.     

 

   It may take time but it is essential that your proof is as full and accurate as possible. Every experienced clinical negligence solicitor can tell of cases taken on because they appeared good initially but later collapsed, even as late as at the trial itself, because the client had forgotten, failed to produce, or had a poor memory of a vital piece of evidence. The proof will also be the basis of future documents used in your case.     

 

   Your solicitor will advise you on how the claim should be funded. If the firm is on one of the clinical negligence panels he or she may be in a position to apply for public funding if your financial situation entitles you to do so. This may be applied for at once. If you do not qualify for legal aid you may be asked for funds to meet the firm’s disbursements, the medical expert’s fees and other initial costs.  But the leading firms have facilities in place to assist in meeting these costs.

 

   Some solicitors, if they have long experience of clinical negligence work, may, at this stage, offer to act for you on a conditional fee agreement (CFA)(also referred to as “no win, no fee”) which you will be asked to sign. More information is provided on our fourth database “How do you finance your claim”. The solicitor is obliged to explain the CFA in a way which you can understand. If you have no existing legal expenses insurance he will also advise on how insurance – termed “after the event insurance” (AEI) - can be taken out to cover the legal costs of the NHS or general practitioner if your claim should fail. Most leading firms have access to funding facilities through banks and/or insurance providers.    

 

Coroner’s inquest

 

   If a death occurs in certain specific circumstances, such as (a) accidentally, violently, unnaturally, suddenly or by unknown causes (eg, during an operation or under or prior to complete recovery from an anaesthetic or arising subsequently out of an incident during an operation or an anaesthetic), or (b) in a prison, or (c) certain industrial cases, the district coroner must hold an inquest.

 

   The purpose of the inquest is to discover who the deceased was and when, where and how the death occurred. The coroner, who is usually medically and/or legally qualified, is not empowered to find any individual person negligent.     

 

   If you are claiming as a parent or dependant of a deceased person your solicitor may discuss attending the inquest on your behalf because he or she would then have the opportunity of learning more about what happened from the doctors’ evidence - and, indeed, see how they present their testimony. Although legal aid is not available for this work if you do win your case most of the costs of your solicitor attending the inquest will be paid by the defence, although probably not the costs of any medical expert acting for you.    

 

   If the solicitor advises that you have no case, ask for the reasons to be put in writing. Since the firm would not be on the clinical negligence panel if its personnel were not assessed as competent and experienced it would probably be wise to accept the advice - the vast majority of clinical negligence claims are not viable. But if you feel strongly that you do have a good case you could go to another firm for a second opinion.

Cost Comparison - India vs United Kingdom (UK)
Significant cost differences exist between U.K. and India when it comes to medical treatment. Accompanied with the cost are waiting times which exist in U.K. for patients which range from 3 months to over  months.

India is not only cheaper but the waiting time is almost nil. This is due to the outburst of the private sector which comprises of hospitals and clinics with the latest technology and best practitioners.

Nature of Treatment	Approximate Cost in India ($) *	Cost in other Major Healthcare Destination ($) *	Approximate Waiting Periods in USA / UK (in months)
Open heart Surgery	4,500	> 18,000	9 - 11
Cranio-facial Surgery and skull base	4,300	> 13,000	6 - 8
Neuro-surgery with Hypothermia	6,500	> 21,000	12 - 14
Complex spine surgery with implants	4,300	> 13,000	9 - 11
Simple Spine surgery	2,100	> 6,500	9 - 11
Simple Brain Tumor -Biopsy -Surgery	1,000 4,300	> 4,300 > 10,000	6 - 8
Parkinsons -Lesion -DBS	2,100 17,000	> 6,500 > 26,000	9 - 11
Hip Replacement	4,300	> 13,000	9 - 11

* These costs are an average and may not be the actual cost to be incurred.

Treatment	India	US
Coronary Artery Bypass Grafting	$6,000	$60,000
Knee Replacement (Single Knee)	$6,500	$22,000
Rhinoplasty (nose job)	$2,000	$10,000
Bone Marrow Transplant	$26,000	$2,50,000
Root Canal Treatment	$100	$1000

An article from ‘The Guardian’ dtd Feb 1, 2005
This UK patient avoided the NHS list and flew to India for a heart bypass. Is health tourism the future?

Three months ago George Marshall fretted about the choice offered by his doctor in Britain. Diagnosed with coronary heart disease, the violin repairer from Bradford was told he could either wait up to six months for a heart bypass operation on the National Health Service or pay ?9,000 to go under the scalpel immediately.

In the end, Mr Marshall chose to outsource his operation to India. Last month he flew 5,000 miles to the southern Indian city where surgeons took a piece of vein from his arm to repair the thinning arteries of his heart. The cost was ?,800, including the flight.

“Everyone’s been really great here. I have been in the NHS and gone private in Britain in the past, but I can say that the care and facilities in India are easily comparable,” says Mr Marshall, sitting in hospital-blue pyjamas. “I’d have no problem coming again.”

The 73-year-old found the hospital in India after a few hours surfing the internet.

“Once I knew others had come I thought, why not? In Europe hospitals in Germany and Belgium would do the operation for less than doctors in Britain. But Europe was still more expensive than here. And the staff speak English in India.”

With patients such as Mr Marshall willing to travel across the globe to get treatment sooner or more cheaply than they could at home, Indian hospital groups see a huge market for their services.

Disclosure of records and the medical expert

 

Letter of claim and disclosure of records

 

Once your solicitor has your proof, any information obtained as a result of a complaint under the NHS procedure (and the coroner’s verdict if an inquest was held), he will consider who the appropriate defendant might be. This can be complicated, especially where you have received treatment from a number of doctors. Or if you were treated abroad by arrangement with the NHS.  If your treatment was on the NHS the potential defendant will be the NHS Trust or health authority responsible for hospital treatment. Most claims against the NHS are defended by the NHS Litigation Authority  www.nhsla.com. If the defendant is your GP he, or his medical practice, will be named as defendant personally because he provides services to the NHS under contract. He will be defended by his insurer probably the Medical Protection Society or the Medical Defence Union.    

 

   If your treatment was private the defendant will normally be the individual doctor or dentist in charge of the treatment as he is not usually an employee of the clinic but merely uses the clinic’s facilities. He will normally be insured against claims as would be the clinic or private hospital itself.     

 

   Your solicitor may write to each potential defendant with brief details as given in your proof, summarising why that defendant is believed to be responsible, setting out your injuries and intimating that you are proposing to claim. This “letter of claim” may ask for an explanation and, if your case appears a strong one, an invitation to settle thus avoiding issue of court proceedings.  The defendant then has three months to respond to the letter.     

 

   The letter often has another purpose: to request all your relevant medical records and medical notes in the possession of the defendant, in particular the written case record. You should have been asked to give your authority for this.  If the claim is in respect of a fatality the post-mortem reports will be requested. In case of difficulty or delay in extracting records from potential defendants your solicitor can, if necessary, apply to the court for an order forcing disclosure and production of records and notes. He may also write to other health carers requesting relevant medical records in their possession. If this is refused the court does have power to order disclosure although one difficulty here is the policy of certain hospitals to destroy records after a few years due to lack of storage space.     

 

The applicable procedure

 

   As between your solicitor and the defence legal team their actions will be dictated by the Civil Procedure Rules www.lcd.gov.uk/civil/procrules_fin/index.htm and in particular the Pre-Action Protocol for the Resolution of Clinical Disputes drafted by the Clinical Disputes Forum www.clinical-disputes-forum.org.uk.     

 

   Once received the records are sorted, paginated, indexed and read carefully, probably using the services of a trained doctor or nurse. This can be a long, arduous task.  If the defendants say that records have been lost they can be ordered to carry out a search. If your solicitor considers it appropriate you may be asked to go through the records and comment where necessary. Any difference between your proof and the records must be considered. A further statement may have to be prepared. Several copies of the file of medical records will be made for use by the medical experts and counsel.      

 

The medical expert

 

   It is no exaggeration to say that your medical expert is absolutely crucial to your case. The perfect expert would be highly qualified and experienced in the speciality which provided the medical treatment complained of.  He must be willing to advise patients’ advisers. He would be skilled at writing reports in good time, familiar with at least the basic principles of clinical negligence law, articulate, confident, concise and cool under cross-examination. He should always be prepared to consider the other side’s view, and make concessions if necessary - judges like such a quality! Note: In the unlikely event that your case goes to trial, your expert’s duty is to assist the court not to act as your advocate.     

 

   Unfortunately, medical experts – whether acting for claimants or defendants – are, as with lesser mortals, of varying standards. Every lawyer with experience of clinical negligence will know of the, initially, confident expert who gave positive opinions in his report, maintained those views at conference with the solicitor and barrister and then collapsed with a U-turn at a meeting of experts – or, worse, under cross-examination at a trial. Even the most experienced lawyers – and after the event insurers who have been left to pick up the bill - have been taken by surprise when this happens. And, incredibly, that medical expert faces no liability.  He even receives his fees which can run into thousands of pounds.  This is on top of his fees as a consultant if he is not retired.    

 

   Experts, being self accredited, can easily get themselves named, for a fee, in directories of experts and other sources. Solicitors subscribing to our information services on  www.medneg.com, however, have access to a constantly updated Confidential Index of Medical Experts linked with reported cases in which they have given evidence, their track record and even comments, positive or negative, by the judges. No other organisation provides such information which is why the top solicitors and barristers use our services.     

 

   Your solicitor should also have his own list of medical experts, qualified in different specialities, who have been instructed in earlier cases. Normally you can have only one expert in each speciality involved in your case. Most experienced solicitors have experts who are prepared to “screen” your case, ie, give a preliminary opinion, for a modest payment, around £250, or even over the telephone, which will at least let you and your solicitor know if you may have a viable claim.     

 

   Having found a suitable expert who is prepared to act, ensured that he has not been instructed by the defence, checked that he is not known to the doctor accused of negligence and not employed by the defendant NHS Trust, your solicitor will tell you who it is and his experience. He should also tell you of the costs involved. Subject to your agreement he will then send a letter of instruction to the expert to prepare an initial medical report. He will enclose your statement of facts, the medical notes and records and the specific questions which the solicitor wishes the expert to answer.     

 

   A top expert, in constant demand, could take over six months to consider your case and medical records. He may need to conduct a medical examination. He will then send a report to your solicitor on whether, in his opinion, (1)  your medical treatment fell short of accepted practice ie was negligent, and (2)   whether that negligence caused your injuries. He should refer to learned medical texts to justify his opinion ensuring that the texts were those available at the date of the accident, not necessarily the latest editions. It is important that he further states whether other responsible doctors might not agree with his opinion. He should also report on your medical condition and the prognosis because the amount of damages you might expect will, to some extent, depend on this.     

 

    It may be that your case requires the evidence of more than one expert. For example, where antenatal and/or postnatal care has been shared between a hospital (usually, requiring the opinion of a consultant obstetrician)  and a general practitioner. 

 

   Subject to payment of your travel costs and loss of wages the defence have a right to have you medically examined by their own medical expert. This is to ascertain the extent of your injury - you should not be asked about the facts of your accident - and your solicitor should warn you to say as little as possible at that examination because it will probably be referred back to the defence in their expert’s report. Beware: If your claim is for substantial damages and the defence believes that it is not genuine they may instruct an enquiry agent to obtain evidence, including video evidence, to discredit your claim.     

 

   What if your medical expert expresses the opinion that you do not have a case? If he is considered reliable your solicitor will probably advise you to drop the claim. You may be able to get a second opinion, particularly where your claim is high value, but it could be difficult where public funding is involved. Nevertheless, your solicitor may consider that it is worth consulting another medical expert, or a barrister, to confirm that your case is not viable.     

 

   Throughout all these steps your solicitor should keep you advised on progress in the case and tell you of any delays, for example, in getting appointments with, or reports from, experts. Once your solicitor has received and carefully read the report from the medical expert he will probably be in a position to tell you, for the first time, about the realistic prospects for your claim. He should have full knowledge of the “medical jargon” and abbreviations used by medical practitioners, explaining them to you if necessary.     

 

   If your solicitor advises you at this stage to drop the claim you could, of course, go to another firm but you do need to do some soul searching because with the expertise now required of solicitors in this field - by the Legal Aid Board and by the after-the-event insurers under conditional fee agreements - it is unlikely that your solicitor would give such advice through incompetence. But it has happened …     

 

   If your claim is prima facie good but your solicitor sees some difficulty in establishing facts or proving clinical negligence and causation he may still advise pressing on for a settlement. If you are legally aided you have a strong hand for doing this because the defence will know that, even if they win, they will recover none, or very little, of their costs from the Legal Services Commission.     

 

   Assuming that you do have a positive opinion from the medical expert, your solicitor, if he has not already done so, will now send a formal letter of claim to the defence before any court proceedings are commenced. (If there may have been a problem with your claim being late under the limitation rules your solicitor may have issued protective proceedings, ie a claim form, before this.)  The defendant should acknowledge the letter of claim within 14 days and provide a detailed response within 3 months

A Briefing for the Patient and Relative

___________

by

Geoffrey Hall

of the Middle Temple, barrister

March 31, 2006 Edition

© Geoffrey Hall 2006

This briefing will be kept regularly updated as new cases are decided and rules are revised. It can be downloaded from the ARTICLES database at www.medneg.com for £7 paying by credit card on this secure site.

 

   You do not have to be a Subscriber to browse our professionals’ website www.medneg.com although you do need to register. You can word search for legal cases, doctors, medical conditions and procedures, hospitals, medicines. Most materials can be downloaded using a current credit card.

 

   People who suffer injury from a medical accident are often emotional and upset. Blaming the doctor may appear to be the only course: He did it; he must be to blame. The seriousness of the original medical complaint, and the risks frequently involved in medical treatment, may be forgotten.  We have been covering this subject for eighteen years. We know that litigation can mean years of worry – possibly with huge bills to pay at the end. You must try to put emotion on one side, consider how serious your true loss is and ask yourself: “What do I really want?  An investigation and explanation? An apology?  To make an effective complaint that will help to prevent similar accidents?  Should I consult a solicitor?”

 

   You could, of course, instruct a solicitor to act for you in making a complaint only. But if you, or your child, needs financial compensation to pay for lost income, remedial medical treatment, future care and equipment, then you must see an experienced clinical negligence solicitor as soon as possible.  He or she has the experience to make an initial assessment of your claim and advise whether it is worth investigating. Do not respond to newspaper, TV or radio advertising by solicitors or claims organisations unknown to you.   For a tragic warning of what can happen read the story of solicitor Jane Loveday in the FORUM database on this website.

 

   The leading clinical negligence solicitors, who have satisfied a Law Society examiner of their competence, may well have a trained nurse who could give initial advice on your case over the telephone.  A member of staff can travel, if necessary, to your home.  But you must be aware that the vast majority of claims made to a solicitor get no further than the initial stage because the solicitor’s expertise enables him or her to assess the chances of the claim succeeding.  It is not usually viable to run a claim that does not have at least a 60 per cent chance of success.  There are also problems with advancing claims valued at less than £10,000 although the true experts have creative strategies which can effect recoveries of even smaller amounts.

 

   In those cases that do proceed further, after your solicitor has advised you that you may have a valid claim, he will discuss his terms and finance. He will obtain, with your authority,  your medical records from the hospital. These will be passed by the solicitor to a medical expert  in the specialism involved who is experienced in giving evidence in clinical negligence cases not merely simple personal injury claims. Once the expert has provided a positive report your solicitors can weigh up more fully the risks involved, assess the potential compensation which you - or your dependants – might obtain and consider how the claim will be funded, the possible strategy and tactics.

 

   The quality of advice given by solicitors in this field varies enormously.  There are over 250 firms of solicitors on the Law Society Clinical Negligence Panel www.lawsociety.org.uk/professional/accreditationpanels/clinicalnegligence.law.  But our researches show that only 60 or 70 firms, most of whom are our subscribers, handle the bulk of litigation.  Figures from the Legal Services Commission www.legalservices.gov.uk (formerly Legal Aid Board) and the National Audit Office www.nao.gov.uk, which only we have analysed and published, show that in cases funded by legal aid some solicitors win over 70 per cent of their cases, while others lose around 80 per cent.

   

If you, or your child, were injured by a medical blunder which firm would you prefer to instruct?

 

   All solicitors on this website have established reputations in this field.  They have another important advantage over others:  As our Annual Subscribers, in addition to open access to our CASES database on www.medneg.com, they have access to two unique, restricted databases: Our Confidential Indexes of Expert Witnesses and Counsel – available to no-one else.

 

   And, unlike claims organisations which advertise extensively in the media, we receive no payment if you contact one of those solicitors – each Firm pays just £150 annually to appear on this website.  That enables us to provide these regularly updated databases of information to you completely free of charge.

 

The NHS Redress Bill

 

   The government has recognised that the present system is complex, slow and costly. On June 30, 2003, the Chief Medical Officer published a key report Making Amends www.dh.gov.uk/PublicationsAndStatistics which made a total of 19 recommendations for reforming the approach to clinical negligence in the NHS. The report proposed, among other reforms, a new NHS Redress Scheme, changes in the NHS Complaints Procedures, a duty of candour within the NHS, consideration of mediation before litigation. More controversial proposals included the capping of damages awarded to brain-damaged children, and the provision of necessary healthcare through the NHS rather than private facilities. These proposals, it was promised, would following detailed consultation, be written into a definitive statement of policy later in 2003. The government has, in fact, adopted only one of the 19 original recommendations.

 

   On October 12, 2005, the NHS Redress Bill, an enabling provision, was introduced in the House of Lords www.publications.parliament.uk/pa/ld200506/ldbills/022/2006022.htm. The Bill, which has been strongly criticised by the all-party Constitutional Affairs Committee www.publications.parliament.uk/pa/cm200506/cmselect/cmconst/1009/1009.pdf, created a furore on publication as it would have put the scheme under the control of the NHS Litigation Authority – which in fact defends all clinical negligence claims against the NHS! Fortunately, in the House of Lords, the Conservatives and Liberal Democrats forced – by one vote - an amendment on the Government but the Bill has yet to be debated in the House of Commons. 

 

   To conclude this Part, if you believe that poor medical treatment has caused you pain, loss of income and costs, for example for past and future care, visit Where can you find an experienced clinical negligence solicitor? Then click on the Map of Experienced Clinical Negligence Solicitors’ Firms on our home page for those most convenient to you. Do not delay! Because

 

(1)          the law on limitation allows you only three years from the date of the accident to start proceedings but there are important exceptions, particularly in clinical negligence,  which an experienced solicitor can advise you about;   

 

(2)        your solicitor will need time to investigate your claim, obtain your medical records, send them for medical expert opinion, perhaps instruct counsel, a barrister experienced in clinical negligence, organise case meetings - and open negotiations with the other side;

 

(3)        if the claim involves a death your solicitor may, after discussing it with you, decide to attend any coroner’s inquest as the evidence and verdict given  could prove extremely important in your claim.   

 

   The information on this website is not intended to replace any advice from a solicitor but, downloaded and printed out, it should help you to understand that advice and the reasoning behind it on such questions as -