What are court proceedings in a medical negligence claim?

Unfortunately, there are times when the Pre-Action Protocol for the Resolution of Clinical Disputes is unsuccessful. When this happens, it becomes necessary to issue court proceedings and allocate a judge to rule in the case.

This can feel quite intimidating, particularly if you have never experienced going through the courts before. Rest assured, your solicitor will be on hand at every step to provide the support and expert legal guidance you need.

Submitting a Claim Form and the Particulars of Claim

Once court proceedings begin, you’re likely to be faced with a bit of legal jargon. Again, your solicitor will explain everything to you clearly as you progress.

The first stage is to issue a Claim Form in court. This provides a brief summary of the medical negligence claim and an indication of the potential value so that the court fee to issue the claim form can be calculated.

Once this has been completed, Particulars of Claim and supporting documents, including a draft Schedule of Loss setting out the potential value of the claim, will need to be served. The Particulars of Claim are, essentially, a detailed version of the Letter of Claim and need to include:

• A clear summary of the facts on which the claim is based;
• The main allegations of negligence;
• Details of all injuries that have been sustained as a result of the alleged negligence, including the current condition and future prognosis, where relevant and if known; and
• Details of any other financial losses sustained as a result of the injuries.

The defendant (i.e. the medical provider) has 14 days to acknowledge receipt and indicate whether they intend to defend the claim. They then have 28 days from receipt of the Particulars of Claim to file a Defence, though in many cases, the defendant will ask the court for more time to do so.

Allocating a judge and preparing a directions order

Once the court has received a copy of the defence, the claim will then be allocated to a court track. The ‘track’ depends on the claim’s complexity and value and will affect everything from how a case should be prepared and the length of the Trial, to the type of judge that will hear it.

After a judge has been appointed, they will convene a Costs and Case Management Hearing, which will determine how a medical negligence claim will be prepared for trial by making a Directions Order. This will usually include:

• Alternative Dispute Resolution (ADR): The court will usually order that, at all stages, the parties to the medical negligence claim must consider whether it can be settled without the need for further court involvement. It takes ADR very seriously and any party that refuses to engage in ADR could face serious costs consequences.
• Disclosure: Both parties in a medical negligence claim have a strict duty of disclosure, which means all documents pertaining to the case should be disclosed to the courts and the other party, regardless of whether they support the claim or not. The underlying principle is that the court can only deal with the case justly if all the relevant material is out in the open and readily available to all the parties.
• Factual witness statements: Both parties will be given permission to rely on factual witness statements from those present at the time of the alleged negligent treatment. This could include the patient, and family or friends that witnessed the treatment and the clinicians.
• Expert evidence: In most Directions Orders, the court will allow each party to rely on expert evidence. The duty to file and serve expert evidence is broken down into the experts that are commenting on liability (i.e. breach of duty and causation) and those focusing on the injury or illness caused, the recovery prognosis and the financial valuation of compensation.
• Joint expert discussions: If need, the court will order experts to attend a joint discussion to try and narrow any differences of opinion. Doing so means that when the case is heard at Trial, the judge will only hear the issues not already agreed between the parties. At the end of the discussion, the experts will prepare a Joint Statement providing a summary of what, if anything, has been agreed.
• Schedule of Loss: This document will specify the damages – or financial compensation – that the claimant is seeking. It will be broken down into two categories; general damages (compensation awarded for the injury or illness itself, including recovery time) and special damages (recovering any financial losses incurred because of the injury or illness). This will need to be served to the defendant, who will have the opportunity to serve a Counter-Schedule of Loss.

Going to Trial

Once all the evidence in the medical negligence claim has been finalised, the claim will be ready for trial. In most medical negligence claims, the court directions can take between two to three years to complete. However, if a stay in proceedings is required, it could be longer.

You can learn more about medical negligence claims using the links below or alternatively, if you’d like to discuss your own case with one of our legal experts, you can get in touch on 0330 041 5869 or request a callback online.

Introduction to medical negligence claims

Settling your claim out of court with the Pre-Action Protocol

Glossary of Key Terms