Medical Negligence and Personal Injury claims: what you need to know podcast series

In the fourth episode of our Medical Negligence and Personal Injury claims: what you need to know podcast, Laura Sylvester and Aideen McGarry speak about the initial stages of making a medical negligence claim or a personal injury claim. They discuss the various steps in the process which include, obtaining all relevant documents, investigating the claim, drafting witness statements, exploring the extent of injuries and financial losses, pre-action protocols, resolving the claim, and what happens if the claim is omitted or denied.

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READ THE TRANSCRIPTION

Laura
The first step is to obtain all relevant documents for your case. This may include obtaining your medical records, any complaints correspondence, investigation reports, photographs or any other documents that relate to what happened which might help us prove the case.

We will then work with you to draft a witness statement which will set down your account of what happened, this is your opportunity to tell your story and will help guide your legal team, the experts and the courts later in the claim by making sure all the key facts are available.

Aideen
At this early stage in the investigation, it may also be prudent to explore the extent of your injuries and financial losses so that we can start to assess the value of your claim. We will then review the evidence gathered and we will advise you on whether we have enough information to move on to the pre-action protocol stage, or whether we need to obtain more evidence, such as expert evidence first to help us to establish what happened and whether there was an negligence or any fault by another party.

Laura
After investigating your claim, if your solicitor believes you have sufficient prospects of winning the next step would be to engage in what is called the pre-action protocol. There are specific pre-action protocols depending on the type of claim you have. The protocols are standards of conduct which the courts expect parties to follow. The purpose of this is to give the proposed defendants sufficient information and understanding of your claim to enable them to investigate it and where appropriate, resolve it.

The aim is to resolve claims at an early stage without involving the courts system, in an effort to save money and court time. Whilst a potential claimant could just issue their claim at court, they risk the courts imposing costs sanctions on them for doing so.

Aideen
The first step in the pre-action protocol is usually to send a letter of claims to the defendant. The pre-action protocol sets out the points which will be contained in the letter of claims. This includes, a summary of the facts, the injuries the claimant has suffered and the main allegations of negligence. The important thing is that a defendant has enough information to enable them to focus the investigation and put an initial value on the case.

The next step envisaged by the pre-action protocol is for the proposed defendant to send a letter of response to the claimants letter of claim within four months. Often when the issues in the claim are complex, a defendant will ask for extra time to serve the letter of response. Again, the protocol describes what this letter should contain, perhaps most importantly a letter of response should set out clearly, whether the claim or part of it is admitted or denied. If the claim is admitted, the pre-action protocol includes provisions for making offers of settlement. Either side can offer to settle the potential claim for compensation on any term. If the claim is denied, your solicitors will consider the defendants comments on the allegations of negligence and re-assess with you the strengths and weaknesses of your proposed claim.

Laura
Bringing a claim can seem like a daunting prospect but your solicitor will guide you through the process and explain what each step entails as you go through the claim.

 

ABOUT THE SPEAKERS

Laura Sylvester is a Senior Associate in the Medical Negligence and Personal Injury team.  She has a broad range of expertise, with experience including brain injury claims relating to children with cerebral palsy;  colorectal/abdominal and gynaecology claims; and late diagnosis of infection cases and fatal claims.  Laura acts for children and adults from all walks of life and she has received praise from clients about her professionalism, together with her ability to act in a sympathetic and supportive manner and she has experience of guiding clients through the legal process whilst understanding the needs of her clients.

Aideen McGarry is an Associate in the Medical Negligence and Personal Injury team. Aideen has experience working on high-value clinical negligence and personal injury claims. She has acted for clients in claims against their GP, hospital or health providers in relation to injuries suffered as a result of wrong treatment, surgical error, delay or missed diagnosis. Aideen has also represented clients injured in road traffic accidents, accidents at work and accidents on public property.

 

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