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 -

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