Lawyers call for independent scrutiny as scale of Midlands chemotherapy scandal grows

Two legal aspects must both be proved to successfully establish and pursue a case:

1. That the standard of treatment and care has fallen below the standards of reasonable competence in a particular field of medicine. In a clinical negligence case, that standard is considered independently by a medical expert that practises in the same area of medicine. They provide an opinion independently on the basis that the case may one day go to court.
2. That but for the negligence, the injury would not have arisen, or that the negligence caused additional/worsening pain, suffering and loss than may have been the case absent the negligence.

Financial compensation is mainly broken down into two aspects:

General damages

General damages address the pain, suffering and loss of amenity arising from the negligence. The value of this aspect of your case is based on guidelines which are often updated to assist courts and judges, barristers and solicitors. They break down various injuries or medical conditions into brackets, depending on severity. While existing case law may have similarities to your own circumstances, there is no exact science to the process of valuing a case. This makes it difficult to advise on value until the exact nature and extent of the injury or condition arising from the negligence is made clear.

Examples of what general damages compensate for include:

• Physical pain and suffering.
• Physical injury or impairment.
• Mental pain and anguish.
• Any reduction in quality of life.

Special damages

Special damages cover the financial loss arising from negligence. Again, this is dependent on the specific case and whether you have needed care and assistance (either paid or provided by family and/or friends), lost earnings, incurred travel expenses (as a result of having to attend appointments) or required equipment or clothing. All these losses may add value your case. It is always important to keep hold of any receipts and/or documentary evidence to prove your loss.

Special damages include:

• Short- and long-term medical expenses.
• Loss of property.
• Prescription costs and medication.
• Aids and equipment.
• Private treatment costs / rehabilitation.
• Travelling expenses.
• Loss of earnings and earning capacity.
• Loss of pension.
• Property adaptations.

Special damages also take into account the possibility of any future losses of expenses, including:

• Future loss of earnings.
• Future loss of pension.
• Future care and assistance.
• Future aids and equipment.
• Future care costs.

Instead of receiving compensation directly, you may want to set up a personal injury trust. Your money can then be held and managed by your chosen trustees on your behalf. The benefits of paying your compensation directly into a personal injury trust is that you are still able to claim any benefits and care funding that you may be entitled to (both now and in the future), as trusts are discarded when assessing eligibility for means-tested benefits.

If you believe that you have suffered injury or loss as a result of negligent medical treatment, you can make a claim. You can begin by contacting us to discuss your options. We will explain the process and help you to gather any information you will need in order to make your claim.

Typically, your solicitor will first request a copy of your medical records. After the records have been reviewed, a decision will be taken about whether to take matters further (usually within three to six months). If so, an expert will be instructed to report on breach of duty and causation (or breach only and then causation).

It is important to know and understand that both legal aspects (see above ‘how is medical negligence proved?’) must be proved to pursue a case. We will instruct an independent medical expert with experience in the medical area you have been affected by. That expert will often hold a position within the NHS or be a practising GP, dentist or surgeon — and is therefore qualified to provide an opinion on accepted standards of medical practice at the time of the negligence.

While everything is case-dependent, some claims can be resolved within 12 months, though others can take longer. In almost all cases, once the medical records are requested and reviewed, a decision will be taken by your solicitor (with your input) about whether to take matters further. This is usually reached within three to six months. If so, an expert will be instructed to report on breach of duty and causation (or breach only and then causation). A breach of duty expert is not always required if some early admissions of liability have been made. A causation expert may not be required if it has already been accepted that the outcome may have been different if the incident (alleged negligence) had not arisen.

In a clinical negligence case (as in all civil cases) there is a protocol to follow which is underpinned by the Civil Procedure Rules. Once supportive medical expert evidence is obtained in your case, a formal letter of claim is sent to the Trust or GP/dentist/surgeon/consultant to commence investigations and (in most circumstances) seek their own independent expert evidence. Under the protocol, they have four months to respond to your claim and then must either admit liability or deny, setting out detailed reasons why.

A further assessment of your case is then undertaken, looking at the defendant’s response and the expert evidence obtained on your behalf. There may be issues that require further clarification and further medical evidence may be needed to consider your current condition and prognosis. This is often by way of an in-person examination with the medical expert. Either way, if we remain confident in your case, we will proceed initially (on your instruction) to put forward an offer to the defendant to settle your case.

You may wonder why, in some cases, a settlement is offered — particularly if liability is denied — but this is because all cases carry litigation risk. Ultimately, if your case were to go to trial, whose evidence would the Judge prefer — yours or the defendant’s? The defendant will always be backed by their own insurance and legal representatives, who know and understand the risks just as we do. Therefore, they also understand that any offer to settle should be taken seriously.

It is not unusual for a defendant to reject an offer. If this happens and we remain confident in your case, we will advise that court proceedings be issued and served on the defendant. This does not mean that your case will go to court — this is actually highly unlikely. However, it does mean going through the motions as the evidence continues to unfold. Eventually, the case will typically either settle or discontinue. The latter will only happen if compelling evidence is produced that significantly alters the prospects of success in your case.

A case can take anything from a few months to a few years to settle. The complexity of the case is a main feature and where there are ongoing medical issues, the extent to which a medical opinion can be given only becomes clear as matters evolve. An average case will take between 18 months and three years.

It may appear to be a gruelling process and it does take courage to step forward, speak up and seek initial legal advice. However, once you do, we will guide you through each step and limit the impact of the legal process as much as possible, enabling you to focus on your (or your loved one’s) health and maintain as high a quality of life as possible.

When investigating your case, we are not only making sure that your recollection of events ties in with what is set out in your medical records, but also considering whether the legal aspects of breach of duty of care and causation can be established.

Your medical records are important in that they are contemporaneous — meaning that they are written at the time (or as near to the time as possible) that events occur when no-one is contemplating a claim against them.

From here, we are looking to establish whether a breach of duty has arisen. A breach of duty can arise on many levels in a healthcare setting. The test of whether a healthcare professional has breached their duty of care owed to a patient is whether he or she has failed to meet the standards of a reasonable body of practitioners also skilled in that field of medicine.  However, it is not enough just to establish a breach of duty — it must also be proven (on the balance of probability) that as a result, injury was caused. This is known as medical causation.

It is our role as lawyers to consider these aspects when reviewing your records. We will update you following our review and let you know whether we are going to take your case forward. If the records support your claim, we will move to Stage 2. Alternatively, if — after reviewing your records — we do not consider there are sufficient prospects to continue, we will advise you of the reasons why and proceed to close our file of papers.

Stage 1 — receiving medical records

Stage 1 usually takes between one to four months, but sometimes longer if there is any hold up in receiving medical records or if, once received, further records that may bear relevance to your case are thought to be missing or yet to be requested.

Stage 2 — instructing a medical expert

If the records support your case, we will look to approach an independent medical expert in the field of medicine where you believe there has been negligence. We need an expert to support your case.

Initially, we may seek a steer from an expert first by sending them an overview of your case and asking whether they think it is worth pursuing — and if so, whether they will accept instructions.

We work with many experts who are highly experienced and well regarded in what they do. This provides you with added assurance of the thorough nature in which we will work on your case.

If breach of duty and/or causation appear to be fairly straightforward, we may at this stage write to the Defendant, setting out details of your claim in a Letter of Notification. This gives the Defendant an opportunity to investigate your case early on and make early admissions of liability. It can also save costs on both sides in the long run.

If we remain confident in your case, prior to instructing an expert we will arrange for your medical records to be organised into a paginated core medical bundle. Pagination of records allows everyone involved in your case to navigate the medical evidence with ease.

Depending on what has gone on, we may need input from more than one expert. For example, if you are alleging that your GP has breached their duty of care by failing to make a diagnosis or delaying a referral for you (which has caused your outcome to be worse), we would first need an independent report from a GP expert. If they are supportive, we would then need a report from an expert in the field of medicine where you ultimately received your diagnosis to report on causation. They may also be instructed to report on how the breach of duty has impacted your current condition and prognosis. The initial report may take between two to four months to receive. This is generally because independent medical experts who report on medico-legal cases also work in the healthcare setting of their discipline. This is an important aspect because you want an expert who works with current standards and practice to be able to consider the standard of reasonable competence that they have been instructed to provide an opinion on. We will ensure before instructing any expert that there is no conflict of interest.

Timescales to obtain and receive further reports will largely depend on your ongoing symptoms (if any) and whether further updated medical records may be needed.

If the expert evidence on breach of duty of care and causation is supportive, we will proceed to Stage 2. Alternatively, if the expert(s) don’t support your case, we will advise you of the reasons why, take your instructions and may proceed to close your file of papers.

Stage 3 — Letter of Claim

Once we have supportive medical expert evidence in relation to breach of duty of care and causation, we will be ready to formally write to the Defendant with a Letter of Claim. This is the process followed in the Pre-Action Protocol for Clinical Negligence. The Letter of Claim sets out the background of your case in detail, together with the allegations of breach of duty of care and causation. We will also set out what the claim consists of in relation to general and special damages, the estimated value of your case and how it is funded. These are all requirements of the Pre-Action Protocol. Under the Protocol, the Defendant has 21 days to acknowledge receipt and four months to investigate your case. After that time, they must formally respond either with admissions of liability or a denial with reasons why.

During this period, depending on the strength of our expert evidence, we may instruct and obtain further expert evidence to consider your condition and prognosis (how you are currently and when you may likely recover from your symptoms and to what extent). Updated medical records may be requested if you are receiving ongoing treatment. However, sometimes we may wait to obtain this further evidence because we want to see the Defendant’s response or because you are undergoing treatment which can only be assessed further once complete.

Obtaining this evidence will help us to continue to consider the likely value of your case.

Once we receive the Defendant’s Letter of Response, we will review the same and advise you on next steps. If the Defendant admits liability, we will look at the potential valuation of your case. They may admit in whole or in part and put you to proof in relation to the injuries or losses claimed.

If the Defendant denies liability, we will consider this further with you and likely with the expert(s) instructed. This allows us to see whether they maintain their initial opinion. Sometimes, it might be appropriate to have a conference with the expert (usually by telephone). At this stage, we will also instruct a barrister specialised in medical negligence to look over the case and evidence and ask relevant questions to the expert in order to consider the strength of the case. Barristers play an important role here because they have a lot of experience of how evidence is considered in court and can assist in risk assessing the case. You will be part of the process of discussing your case with the expert(s) and barrister. We will be involved with you throughout to guide you through and put you at ease. This is a fairly informal process.

If the expert remains supportive of your case, we will value your case so far as possible and following your instructions put forward an offer for the defendant to settle your case. We may have to make an offer that reflects the risks in your case, which will be highlighted by the Defendant’s response and the expert’s comments.

The Defendant may either agree to accept the offer or negotiate a counter-offer.

If an offer is accepted, you will receive your compensation within 14 to 21 days. We will arrange to prepare a bill of the costs we have incurred, which will be sent to the Defendant.

If an offer is not accepted, based on the strengths of your case we will advise you on the process of issuing and serving court proceedings.

Issuing and serving proceedings does not mean that the case will go to court or trial. In fact, very few cases end up in a courtroom. This is because the claim must eventually either be discontinued based on emerging evidence throughout the case or because the Defendant appreciates a risk aspect of losing if they go to trial and therefore settle the case.

If we do advise that the case be issued and served, it is because the expert(s) on board continue to support it and a barrister advises that it is worth continuing. The barrister will be asked to draft the pleadings of your case (similar to the Letter of Claim) called Particulars of Claim and a Schedule of Loss. Once served, the Defendant must draft a Defence (similar to the Letter of Response).

The case will then proceed through a court timetable of directions, where various evidence is disclosed over time. This presents a number of opportunities for both sides to continually evaluate the strengths and weaknesses of their cases to determine whether settlement should and can be achieved, or if it will go to trial.

Once court proceedings commence, the case can take up to 12 months before it either settles or goes to court.

In the rare eventuality that the case does go to court, it is up to a Judge on the day to determine whose evidence they prefer to find in favour of.