Most medical or clinical negligence claims are handled by a specialist solicitor on behalf of the individual making the claim. However, with cuts to legal aid, and the cost of specialist legal representation, more and more litigants are taking legal action without using lawyers.
If you are considering making a medical negligence claim as a ‘litigant in person’, it is always advisable to see if a solicitor will take on your case on a ‘no win no fee’ basis so that you will only pay legal fees if you win. However, if you proceed on your own, you will need to comply with the Pre-Action Protocol for the Resolution of Clinical Disputes.
What is the Pre-action Protocol for the Resolution of Clinical Disputes?
The Protocol applies to all medical negligence claims and clinical disputes. It applies to all aspects of the health service, both primary and secondary, and applies to both the public and private sectors. It sets out how the parties should try to resolve the dispute by encouraging openness, and to ensure the parties are given the information they need early on. The objective is to try to facilitate a settlement without having to go to the expense of formal court proceedings.
The Protocol sets out what a letter of claim for a medical negligence claim or clinical dispute, should contain.
Claimants are expected to comply with the Protocol before starting formal proceedings. You should also note that the rules of the Protocol apply to you, just as much as they apply to lawyers. However, a claimant can commence court proceedings without complying with the Protocol if otherwise, the claim may be time-barred and/or the claimant’s position needs to be protected by early issue of proceedings.
What are the requirements of the Protocol?
Claimants are encouraged to use the template letter of claim which is annexed to the Protocol. In any event, the letter of claim should contain sufficient information to enable the healthcare provider, such as an NHS Trust, to investigate the claim and put an initial valuation on the claim. Specifically, the letter of claim should include the following information:
The letter of claim should state your full name and address and your date of birth.
The facts of the case
It should contain a clear summary of the facts and events giving rise to your claim, including the alleged adverse outcome of the medical treatment, and the date/s of the allegedly negligent treatment. It should give an outline of what happened and, where relevant, details of any relevant treatment you received from other healthcare providers.
In complex cases, a chronology of the relevant events should be provided. This is particularly the case where you have been treated by more than one healthcare provider.
The basis of the claim
The letter of claim should set out the main allegations of negligence and how it is alleged the healthcare provider caused your injuries and/or condition. In a complex case,you should include a detailed list.
The claimant’s injuries
The letter of claim should describe your injuries, and any condition that resulted from the alleged negligence; your present condition and the prognosis.
Financial loss suffered
If you suffered any financial loss, such as loss of earnings, travel expenses and cost of private medical treatment, these losses should be set out in your letter of claim.
Investigations carried out
The letter of claim should say what investigations have been carried out to date, for instance, a formal complaint, investigations by the Health and Safety Executive, witness statements, and expert reports.
The letter of claim should refer to any relevant documents, such as medical records and photographs. Ordinarily, copies of those documents which the defendant does not already have should be provided.
Request for medical records
If you don’t yet have copies of your medical records, a request for them should accompany your letter of claim. There is a prescribed form for requesting medical records. Your request needs to be specific, and if other relevant records are held by other healthcare providers, this should be indicated.
Offers to settle
Claimants are encouraged to put forward an offer to settle at an early stage. Where an offer to settle is made, it should normally be supported by an expert medical report detailing the injuries, your condition and prognosis, and a schedule of loss supported by relevant documentation.
You will need medical evidence to support your claim. In the interests of costs, a joint medical expert is usually appointed, and this should be agreed with the other side.
Alternative dispute resolution
Your letter of claim can set out your suggestions for trying to settle matters or discuss certain issues to that end, such as meetings, negotiations, or mediation.
Once your letter of claim is completed, you will need to send sufficient copies (usually 4 at a minimum) to the court with the required fee, along with the enough copies of the documentation referred to in your letter of claim. Once issued by the court, you will need to serve the letter of claim on the NHSLA and the NHS Trust (or other defendant organisation).