Medical Negligence and Personal Injury claims: what you need to know - Episode 7 - Key steps leading to trial

Laura Sylvester & Aideen McGarry

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

In the seventh episode of our Medical Negligence and Personal Injury claims: what you need to know podcast, Laura Sylvester and Aideen McGarry continue our series on what is involved with bringing a clinical negligence or personal injury claim by talking about key steps leading to trial.

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Aideen McGarry

Hello, I am Aideen McGarry, Associate, in the Medical Negligence and Personal Injury Department.

Laura Sylvester

and I am Laura Sylvester, Partner, in the Medical Negligence and Personal Injury Department. 

Aideen McGarry

and today, we are going to be continuing our series on what is involved with bringing a clinical negligence or personal injury claim, by talking about the key steps in a clinical negligence or personal injury claim to trial or resolution. 

Laura Sylvester

So we left the last podcast at the end of the costs and case management conference, where a Directions timetable would have been approved or ordered by the Court.

Now we are focusing on what happens in that timetable. The first step is usually disclosure. This is where both sides are required to exchange documents which are relevant to the claim. 

Each party prepares a List of Documents form, which sets out all of the documents which are relevant to the claim and includes documents which you once had in your possession, but you no longer have.

A “document” is not just a written document, but includes handwritten notes or historic records such as telephone records, medical records, emails or computer hard drives etc. 

Some documents will support the case. Some may be damaging to the case or support the Defendant’s case. You are required to disclose documents that fall into all of these categories.

As a party in the litigation, it is your obligation to conduct a reasonable search for any documents that are relevant to the litigation. The duty to disclose relevant documentation is ongoing and it is important to let your solicitor know about any documents that become relevant to the litigation at all times during the life of the claim.

Parties are not obliged to disclose any documents in their list that are protected by legal privilege. In broad terms, this rule refers to documents that have been created as a result of the litigation or the possibility of litigation. 

Aideen McGarry

After the parties have exchanged documents, and had the opportunity to review these with their witnesses as necessary, the next step in the Court timetable is exchange of witness statements. This is evidence from lay people or non-experts.

The Claimant will usually serve statements regarding the circumstances of the claim, so in a medical negligence claim this would include their recollection of the history of their treatment. They will also usually detail for the court the injuries they have suffered and the effect they have on their everyday life. Other typical witness statements served for the Claimant include statements from friends and family about the effect the negligence has had on their lives, and any care and assistance they have provided to them.

On the Defendant’s side, lay witness evidence is usually confined to issues of liability, so for example in a clinical negligence claim this may include statements from the treating doctors detailing their recollection of events.

It is often the case that witness statements will have been served in the pre-action period, and your solicitor will discuss with you the need for further lay evidence, for example to deal with liability issues which have arisen in the parties’ pleadings, or to bring the court up to date on your current condition.

The Court can make specific orders in relation to witness statements, for example that they are limited to certain issues or limiting the number of witnesses or the length of their statements. A typical order in relation to witness evidence is that a party will not be allowed to rely on a witness at trial who has not served a witness statement.

Laura Sylvester

Following exchange of witness statements, the next stage in the timetable is usually the exchange of expert evidence. Depending on what the timetable says, this may be limited to just liability expert evidence (i.e reports relating to breach of duty and causation, which we have covered earlier in the series) or quantum evidence, where this deals with condition and prognosis and quantification of damages. Some timetables may include both types of expert evidence.

Usually, you will have a conference with Counsel in the lead up to exchanging expert evidence, so that the reports can be finalised with the experts before service. You will be asked by your solicitor to approve the reports before these are served and it is important that you read the reports and take on board your Solicitor’s advice carefully, to make sure that the detail in the report is accurate, so far as you are able to comment.

Once the expert reports have been exchanged, there is then provision for the experts of like discipline to meet at a joint meeting. Lawyers prepare an agenda or two agendas if they cannot agree. The experts then meet privately and without any lawyers present. The experts then prepare a joint statement after their meeting, responding to the questions raised in the agenda or agendas and this is served on both parties. This is a key step in the claim because the experts will be discussing the issues in the claim and it can often result in one party’s expert changing position, where they compromise and this can impact on the future of the claim. 

Aideen McGarry

Finally, a court timetable will also direct the Claimant to serve a final Schedule of Loss, and the Defendant to serve a final Counter Schedule (assuming the Claimant’s schedule is not agreed). These are documents which set out the heads of damages claimed, and the parties’ positions as to what awards should be made if the Claimant is successful in proving liability (or negligence).

The timing of service of these documents varies between claims, but often occurs at the same time as the parties serve their condition and prognosis expert evidence, or after experts’ joint meetings.

In episode 5 of the series, we briefly discussed the preliminary schedule which a Claimant serves when they are serving their claim on the Defendant. However, as this schedule is served before the claimant has been able to fully investigate their claim, it is normal for a lot of the heads of loss to be marked “TBA” or “to be assessed”.

By way of contrast, a final schedule will need to set out in fine detail the Claimant’s calculation as to the appropriate level of compensation.

In claims where the claimant is alive, the schedule will fall into three parts; general damages for pain, suffering and loss of amenity, past losses and future losses.

If the claim arises out of the death of somebody the schedule will cover claims for the deceased’s estate for pre-death pain, suffering and loss of amenity and consequential losses, a bereavement award for the dependents, as well as awards to compensate the dependents for the financial and services losses arising out of the deceased’s death. 

Laura Sylvester 

Your solicitor will be able to advise you further on the key steps in a claim. If you or a member of your family would like to discuss any of the issues raised in this podcast, please contact one of our specialist solicitors on enquiries@kingsleynapley.co.uk or on 02078141200.

Aideen McGarry

Thank you for listening.

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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