Once your medical negligence claim has been investigated by your solicitor and an independent doctor or other medical expert has confirmed that you have a claim, the official claims process can then start.
This may involve making a formal complaint to the professional body or medical professional in question. It is always worth contacting them directly before starting legal proceedings against them as they need to be aware that a case is being bought against them.
In most cases you should be able to settle your claim outside of court; the defendant may decide that it would make more sense for them to pay you compensation without the legal expense, and time involved in a contested court case, especially if your evidence is strong. Settlements are normally achieved through negotiating with the defence. However, settlement outside court isn’t always possible, and so 2 or 3 in every 100 cases will end in a court case.
Depending on when you made your claim, your medical negligence solicitor may already have started court proceedings to make sure you acted within the prescribed time limits. If this has not already been done then this will be the next step. However, court proceedings should usually only begin once a letter of claim has been sent to the medical professional in question and any attempts to settle the claim with them directly, outside of court, have failed.
Choosing the right court
Your solicitor is usually the one who decides which court your case will be heard in. For medical negligence cases, this will usually be the High Court. This is because the High Court judges tend to be more experienced in such cases, which can be very useful when making a claim. However, depending on the circumstances of your case and how complex it is, it may also be heard in a County Court.
Proceedings will be initiated by your solicitor serving a claims form on the defendant. This should go directly to the defendant rather than their insurers, and ideally it should include details of your claim.
Defending a medical negligence claim
• The defendant will then instruct their own solicitors to act on their behalf. If they have not done so already, they will investigate the defendant’s claim.
• The defendant usually has 28 days to serve their defence, unless the case is heard in the County Court, in which case they have 14 days.
• The defence team is allowed to ask you for more details of your negligence claim if they do not think you have provided sufficient information and they can also ask you to undergo another medical examination, this time carried out by their doctor.
• Once the defence has been served, witness statements also need to be prepared so they can be submitted to the court. This will also include your own personal evidence. After the documents have been submitted, the case will be in the hands of the court.
• Well before any contested court hearing, there will normally be a meeting with your barrister, where your medical expert will discuss what the defence expert has written about your injuries and your claim. They can then provide a supplementary report based on what the defence has written.
• Your solicitor can also ask the defence to clarify their reports by supplying them with written questions within 28 days.
Following this, a final hearing should then be scheduled. A judge will hear the case and rule on the matter; in English courts, juries aren’t used in cases of medical negligence. Once the trial has been completed, if your case is simple then the judge is likely to deliver the verdict orally. If the case is more complex, the judge will deliver a written verdict within three months.
Grounds for appeal
In the event of you losing the case, there may well be grounds for appeal. This is something that your medical solicitor will be able to advise you on. Generally, it is thought that around 50% of medical negligence claims taken on by solicitors are successful, so as long as you have a strong case there is a good chance that you will be successful in your claim.
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Medical negligence claims involve strict time limits. A delay in issuing your claim could result in you losing your right to claim compensation completely.
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