Medical Negligence Claim Investigation
The key role of the medical report
The first stage of the investigation into a medical negligence claim is the identification of the defendants of the case. The solicitor will achieve this by examining the proof which you have provided and any information available through a prior complaint via the NHS procedure. Defendants can be individual doctors, GPs or medical practices or the NHS Trust.
Solicitor’s letter of claim
Your solicitor may first contact the defendant(s) by writing a ‘letter of claim’, which uses the information given in your proof to affirm that a claim is to be made against them and outlining why it is believed they are responsible. The letter that your solicitor composes may contain a demand for an explanation and may propose an out-of-court settlement. The defendant receiving this letter has three months to respond.
This letter to the defendant from the solicitor has a duality of purpose. Through this letter the solicitor can in addition request that all relevant medical records in the possession of the defendant are released. Even if the defendant does not comply, the solicitor can apply for a court order to enforce the disclosure of the information.
The role of medical experts
A key role in your claim will be played by the medical expert. To maximise your chances of success you need to enlist one with the right qualities, namely:
- Experienced in and knowledgeable of the type of medical treatment that the case pertains to
- Some knowledge of the fundamentals of medical negligence law
- Good diction, confidence and sangfroid
- Skill in writing reports in a timely manner
As with solicitors and law firms, medical experts can vary immensely with regard to integrity and the service they provide. This is especially true because medical experts are self-accredited. Solicitors do however usually maintain their own directory of experts with differing specialities which they know and trust due to using them in previous cases.
When the solicitor does find a suitable expert he or she must make sure that:
- They are prepared to act on your behalf.
- They have not been instructed by the defence.
- Not known to the medical professional accused of negligence.
- Not employment by the defendant NHS Trust (where applicable).
Your solicitor should inform you of who the medical expert is and tell you of their skills and experience. After obtaining your consent he should send a letter to the expert instructing them to prepare a medical reporting, including your statements and medical records.
The medical expert will then consider your case and give his opinion to the solicitor on whether the medical treatment that you received was negligent and whether that negligence, if it exists, was the cause of your injury(ies). To achieve this he or she may need to examine you. The conclusions reached should be supported by medical texts and the expert should discuss whether any other reasonable doctor might disagree with his opinion. Be warned that some of the most eminent experts may take months to address your case, such is the demand for them.
When the solicitor receives the expert’s report he or she should discuss it with you and explain the implications for the chances of your case succeeding.
If the medical report comes back suggesting that you do not have a strong case, then the solicitor will probably tell you to abort the claim. He or she may however request a report from another expert for the sake of being sure that there is no mileage in the case.
Medical examinations by the defence
The defence have the right to examine you using their own medical expert(s). The purpose of this examination is merely to inspect the nature of your injuries, and you should not be interrogated.
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