“Why is my claim taking so long” is one of the most common questions raised by clients (usually more than once). Solicitors will often answer with a brief comment regarding the complicated nature of these types of claim. While this is correct, it rarely satisfies clients as it does not respond to the question. This article will explain why Clinical Negligence claims are complicated, and the types of things that can slow these claims down.
On average, a straightforward clinical negligence claim should take between 18 – 24 months. The more complicated the claim, the longer it will take.
Why is Clinical Negligence Complicated?
Clinical Negligence is complex for many reasons, the most obvious being the complicated medical issues involved in the claim.
To prove a doctor or medical practitioner was negligent, you will need to show that a reasonable body of medical professionals would not have done what your treating doctor did. Or rather that a reasonable body of medical professionals would have done something different to what your doctor did.
As you can see it is not as straight forward as other types of claim where there are hard and fast rules as to what you should or should not do. What is reasonable can be very subjective at times. Just because you suffered an unfortunate outcome does not always mean your treatment is negligent.
This coupled with the complex field of medicine can make claims very complicated very quickly.
If you suffered a pre-existing condition then matters become even more complicated as it will be necessary to separate your additional symptoms/problems caused by the negligence from those you were suffering from your already present condition.
What Makes a Claim Take Longer?
The length of your claim will depend on some factors, such as whether the Defendant denies they are liable for your injury, whether you will need further treatment, and whether you can get an appointment with the medical expert promptly.
Clinical Negligence claims can need a lot of investigation before your solicitor even agrees you have a claim. Your medical notes will sometimes be reviewed, and in complex cases, an opinion or report from an independent medical expert will be needed before your solicitor agrees to take your case.
Once your claim is taken on, there is still a lot of work to be done. Many documents must be produced, such as a Letter of Claim, Witness Statements, a Schedule of Loss and Particulars of Claim to name just a few. All of these documents must be very detailed to maximise your compensation.
To produce the needed documents, all of your medical records will need to be obtained and reviewed in detail. These may be held by Hospitals, GPs or private healthcare providers. The Data Protection Act allows the holder to take up to 40 days to provide them following a request. Reviewing them can also take a significant amount of time, as it must be done carefully and if you have a lot of records, then this will make the job even bigger.
Letter of Claim
A Letter of Claim will then be drafted and sent to the Defendants. The Defendants have three months to investigate before they have to respond. If they accept liability, then your claim will need to be valued if they deny liability, then you/your solicitor will need to prepare a detailed argument to persuade the Defendant to change their stance or convince a Judge to agree with you if your claim proceeds to Court.
As said above, a medical expert will need to be instructed; they will then review the records in detail and see you at an appointment if possible. A great many of the independent medical experts are also practising medicine, and they do their medico-legal work on the side. This means getting an appointment with them can take a while (some experts have waiting lists several months long). If your injury/ symptoms are severe, enough you may need appointments with more than one kind of expert.
Discussions between client, solicitor, and experts will then take place, to examine the report and clarify any outstanding issues. Having a detailed conversation between client, solicitor and medical expert can take the time to organise. If there is a barrister involved in your claim, this could take even longer as all of the involved parties will have busy schedules which need to converge.
A lot of time and effort go into the medical report as this document will provide the basis for your claim. It is from this document that most of the other documents will be prepared.
Other documents can also take some time to prepare; your Witness Statement will give a detailed account of the events and the effects the negligence has had on you, your lifestyle, your friends and family and your work. Your Schedule of Loss will show a detailed account your losses caused by the negligence. Preparing these documents can take a long time as they have to be incredibly detailed to stand the best chance of proving your claim and maximising your compensation.
While not definitive this article should have given you a brief understanding of some of the issues involved in preparing a Clinical Negligence claim and why they can take so long to resolve.