How a clinical negligence claim works

Is there a set process for a clinical negligence claim?

Yes, although the precise steps and timing vary from case to case.

Claims in England and Wales are generally expected to follow the Pre-Action Protocol for the Resolution of Clinical Disputes before court proceedings are started, so far as the circumstances allow.

The Protocol is designed to help the parties exchange enough information to understand the dispute, investigate it properly, identify what is agreed and what remains disputed, and try to resolve the claim without litigation where possible.

A claim can broadly move through these stages:

• initial fact-finding and medical records;
• independent expert investigation;
• possible early notification of the defendant;
• a Letter of Claim;
• the defendant’s investigation and Letter of Response;
• negotiation or other dispute resolution;
• court proceedings where the dispute remains unresolved;
• disclosure, witness and expert evidence;
• further settlement discussions; and
• trial if the remaining issues cannot be resolved.

What happens at the beginning of an investigation?

The first task is usually to understand what happened and what legal questions actually need investigating.

That can involve identifying:

• the treatment or omission being questioned;
• the healthcare organisations and clinicians involved;
• the important dates;
• the injury or deterioration said to have resulted;
• what explanation has already been given;
• whether a complaint or patient-safety investigation has taken place;
• whether there may be an urgent limitation issue; and
• what records and other evidence are likely to be needed.

At this stage, it is important to separate dissatisfaction with care from the legal questions of breach of duty and causation.

When are medical records obtained?

Relevant medical records are commonly obtained early because they help establish what was recorded at the time and provide the foundation for independent expert review.

The records may come from more than one organisation. A hospital record, GP record, ambulance record and records from another specialist can each contain different parts of the chronology.

Once obtained, the records can be organised into date order and used to build a medical chronology of the events being investigated.

Why are independent medical experts needed?

Clinical negligence claims often depend on questions that require specialist medical knowledge.

The Clinical Disputes Protocol recognises that separate expert opinions may be required on:

• breach of duty;
• causation;
• the claimant’s current condition and future prognosis; and
• medical issues relevant to valuing the claim.

The expert best placed to assess whether care fell below the required standard is not necessarily the expert best placed to explain what injury the breach caused.

An investigation can therefore involve more than one medical specialty.

Can an investigation stop because the expert evidence is not supportive?

Yes.

A proper clinical negligence investigation can conclude that:

• the care met the required standard;
• part of the care fell below the required standard but did not cause additional injury;
• the medical outcome would probably have been the same despite the breach;
• the evidence cannot establish the necessary legal connection on the balance of probabilities; or
• further evidence is needed before a reliable conclusion can be reached.

That is one reason clinical negligence claims can require substantial investigation before a formal allegation is made.

What is rehabilitation and when is it considered?

The Clinical Disputes Protocol says that both sides should consider as early as possible whether the claimant has reasonable needs that could be met by rehabilitation treatment or other measures.

Rehabilitation can concern practical or therapeutic needs arising from the injury rather than simply the eventual value of the legal claim.

The parties can discuss whether those needs can be addressed while the legal issues are still being investigated.

What is a Letter of Notification?

A Letter of Notification is an optional early step.

After records have been considered and, where appropriate, an initial supportive expert view has been obtained, the claimant may notify the defendant that a claim is likely to follow because a potential case on breach of duty and/or causation has been identified.

The purpose is to give the defendant an early opportunity to begin its own investigation.

Under the Protocol, the defendant should acknowledge a Letter of Notification within 14 days, identify who will deal with the matter and consider whether investigations should begin.

What is a Letter of Claim?

If the investigation supports pursuing the claim, the claimant sends the proposed defendant a formal Letter of Claim.

The Protocol expects the letter to give enough information for the defendant to understand and investigate the case.

It should normally address matters including:

• the important facts and chronology;
• the main allegations of negligence;
• the alleged connection between those failures and the injury;
• the claimant’s injuries and current condition;
• prognosis where known;
• the main financial losses or heads of damage;
• relevant documents; and
• the medical disciplines from which expert evidence has been obtained where applicable.

The detail required depends on the case. Complex claims will generally need more information than straightforward ones.

What happens after the Letter of Claim?

The defendant should acknowledge the Letter of Claim within 14 days and identify who is dealing with the claim.

The Protocol then normally gives the defendant four months from the Letter of Claim to investigate and provide a reasoned response.

During that period the defendant may review the medical records, obtain accounts from the clinicians involved, consider internal documents and obtain independent expert evidence.

If the defendant needs additional time, the Protocol expects any extension request to be made as soon as the need is known, with an explanation of why it is required.

What is a Letter of Response?

The defendant’s formal pre-action answer is called the Letter of Response.

It should give a reasoned position on the allegations.

Depending on the investigation, the response may:

• admit the claim;
• admit some allegations while denying others;
• admit breach of duty but dispute causation;
• dispute breach of duty;
• dispute causation;
• identify the expert disciplines relied upon;
• provide a different account of disputed events;
• provide additional relevant documents; or
• identify another potential defendant.

Where only part of the claim is admitted, the response should make clear what is admitted and what remains disputed and why.

What happens if liability is admitted?

An admission can substantially narrow a claim, but it does not necessarily bring the entire case to an end immediately.

For example, the parties may agree that negligent care caused injury but still need evidence about:

• the claimant’s present condition;
• future prognosis;
• care and treatment needs;
• loss of earnings;
• other financial losses; or
• the overall amount of compensation.

A partial admission can also leave some allegations or injuries disputed.

Can a claim settle without court proceedings?

Yes.

One of the main aims of the Clinical Disputes Protocol is to resolve disputes without litigation where possible.

The parties are expected to consider negotiation and other forms of alternative dispute resolution (ADR).

These can include:

• direct negotiation;
• mediation;
• early neutral evaluation;
• appropriate offers to settle; and
• other agreed methods of narrowing or resolving the dispute.

A settlement can address the whole claim or only part of it.

What is a Part 36 offer?

Part 36 of the Civil Procedure Rules contains a formal procedure for making offers to settle.

A Part 36 offer can be made before or after court proceedings have started and can concern the whole claim, part of the claim or a particular issue.

Part 36 has specific rules about the form of the offer and can produce important costs consequences depending on whether an offer is accepted and on the eventual outcome of the case.

What happens if the pre-action process does not resolve the dispute?

Before starting court proceedings, the Clinical Disputes Protocol expects the parties to review their positions.

This is sometimes described as a stocktake.

The parties should consider the evidence again, identify what is agreed and what remains disputed, and see whether court proceedings can still be avoided.

If proceedings cannot be avoided, they should continue to co-operate and try to identify the issues that the court will actually need to determine.

How are court proceedings started?

Where the claim remains unresolved and proceedings are required, a clinical negligence damages claim will ordinarily be started under CPR Part 7.

The proceedings begin with a claim form. The claimant’s detailed allegations are then set out in the Particulars of Claim, either with the claim form or in accordance with the procedural rules governing service.

The Particulars of Claim identify the legal case being advanced, including the alleged negligence, causation and the injury or loss claimed.

The defendant can then respond through the court process and, where the claim is defended, file a Defence dealing with the allegations.

What if limitation expires before the pre-action process is finished?

The Clinical Disputes Protocol does not extend statutory limitation periods.

If a limitation deadline requires proceedings to be started before all of the normal pre-action steps have been completed, the Protocol recognises that proceedings may need to be issued first.

The parties can then ask the court to stay the proceedings while outstanding pre-action steps are completed.

What happens after a Defence is filed?

Once a defended claim is proceeding through the court system, the court takes an active role in managing it.

The case is allocated to the appropriate procedural track and the court gives directions setting out the steps that must be completed and the timetable for doing them.

Depending on the issues and the complexity of the claim, those directions can deal with matters such as:

• disclosure of documents;
• witness statements;
• expert evidence;
• questions to experts;
• expert discussions and joint statements;
• financial-loss evidence;
• case management hearings;
• settlement or ADR;
• costs management where applicable; and
• preparation for trial.

What is disclosure?

Disclosure is the court process by which parties identify relevant documents that fall within their disclosure obligations.

This is wider than simply obtaining the patient’s medical records at the beginning of the claim.

Depending on the issues and the court’s directions, relevant documents can include material that supports a party’s case, adversely affects it or supports another party’s case.

What are witness statements?

Witness statements contain the factual evidence that a party intends to rely upon from a witness.

In a clinical negligence case, factual witnesses can include the claimant, family members where relevant, healthcare professionals and others with direct evidence about disputed events or the consequences of the injury.

Where a witness is called at trial, their witness statement will ordinarily stand as their evidence in chief, subject to the court’s rules and directions.

What happens to the medical experts after proceedings start?

Once proceedings are underway, expert evidence is controlled by the court under CPR Part 35.

A party requires the court’s permission to rely on an expert report or call an expert to give evidence.

The court can control:

• which expert disciplines are reasonably required;
• the issues on which expert evidence is needed;
• when reports are served;
• whether written questions may be asked;
• whether experts should meet; and
• what issues remain agreed or disputed between the experts.

Experts can be directed to hold discussions and produce a joint statement identifying areas of agreement and disagreement.

Can the claim still settle after proceedings have started?

Yes.

Starting proceedings does not close the door on settlement. Negotiation, mediation and formal settlement offers can continue while the case is being managed by the court.

As evidence develops, issues can also narrow. A party may change its position on liability, causation or the value of the claim.

A settlement can therefore occur before proceedings, shortly after they start, during the evidence stages or closer to trial.

What happens at a trial?

If the parties cannot resolve the issues that remain disputed, the court can determine them at trial.

The judge considers the relevant documentary evidence, factual witness evidence, expert evidence and legal arguments.

Depending on what remains disputed, the court may have to determine questions such as:

• whether there was a breach of duty;
• whether the breach caused injury;
• which injuries or losses are attributable to the negligence; and
• the amount of damages to be awarded.

The fact that proceedings were started does not mean every original allegation necessarily reaches trial. Admissions, agreements and earlier decisions can narrow the issues substantially.

How long does a clinical negligence claim take?

There is no single reliable duration for a clinical negligence claim.

The time required can depend on:

• how quickly the relevant records can be obtained;
• the number and availability of medical experts;
• the complexity of breach and causation;
• whether the claimant’s medical condition and prognosis are settled enough to assess;
• the defendant’s position;
• whether further treatment or rehabilitation is required;
• the amount and complexity of financial loss;
• whether liability is admitted;
• whether negotiations succeed; and
• whether court proceedings and a trial are required.

Some investigations end relatively early because the evidence does not support a claim. Others continue for much longer because the medicine, prognosis or disputed issues require further evidence.

Does every claim follow exactly the same path?

No.

The process is a framework rather than a production line.

For example:

• an early expert opinion may show that no viable claim should be pursued;
• a defendant may admit liability before proceedings;
• breach may be admitted while causation remains disputed;
• liability may be resolved while the value of the claim requires longer-term medical evidence;
• limitation may require proceedings to be issued earlier than normal;
• only one narrow issue may ultimately require a court decision; or
• the parties may resolve the whole dispute through negotiation or mediation.

The purpose of the process is therefore not to force every case through every stage. It is to identify the genuine issues, obtain the evidence needed to decide them and resolve the dispute as fairly and efficiently as possible.