I’m a solicitor who defends negligence claims - AMA

[OolieMacdoolie]

I’m a solicitor who defends professional and (occasionally) medical negligence claims. Ask me anything!

So you act for the NHS or other medics?

I haven’t ever acted for the NHS, but I have acted for individuals operating within the private sector, and for private healthcare providers.

Do claims eventually lapse or run out of time? Eg if someone has applied to the courts within the 3 years, but then several more years pass without further action.

If a claim has been raised within the time limit and then paused, it won’t automatically lapse if there is then no further progress. If there has been a failure to progress for a long time, however, then either party can apply to the court for an order to be made to progress the case.

It’s possible that if something has been paused for a very long time - like years - without any input from either side, the court may have procedures for dealing with it, but it’s not something I’m familiar with.

We are 6 years into a medical negligence claim for birth injury. It seems the defence want to drag this out in the hope we give up or my child dies. They have had 6 extensions. We have now had partial admission of negligence but denial of causality. This will go on several more years while my child is denied the help we desperately need.

Do defence solicitors feel any shame or empathy for these families they are denying justice to? Even after full admissions the defence denies families the full help they need, underestimate housing or care needs and fight every inch of the way.

I can't go into the grounds for denial but they will not hold water in court or mediation.

Do you get frustrated when there's clearly a risk nothing is 100% . When it goes wrong they won't accept that thing do go wrong for a small % and this the risk you take .

If a claim has been raised within the time limit and then paused, it won’t automatically lapse if there is then no further progress. If there has been a failure to progress for a long time, however, then either party can apply to the court for an order to be made to progress the case.

Thanks for replying. In my case I’m being sued, it has already gone on for 4 years! (It wasn’t medical negligence but a member of the public allegedly sustained an injury on my business premises). They want £3000 compensation, and although I’m dubious about the circumstances, I’d much rather just pay it and move on with my life. Unfortunately it is dragging on and I’ve been advised that the legal costs will likely result in me having to pay out over £10000.

@notagainmummy

We are 6 years into a medical negligence claim for birth injury. It seems the defence want to drag this out in the hope we give up or my child dies. They have had 6 extensions. We have now had partial admission of negligence but denial of causality. This will go on several more years while my child is denied the help we desperately need.

Do defence solicitors feel any shame or empathy for these families they are denying justice to? Even after full admissions the defence denies families the full help they need, underestimate housing or care needs and fight every inch of the way.

I can't go into the grounds for denial but they will not hold water in court or mediation.

I’m so sorry about the injuries your child sustained. 6 extensions is a lot - I would expect the judge to make an order to progress in that instance.

I feel a great deal of empathy for those who experience loss or injury as a result of negligence. It’s one of the reasons I don’t really enjoy defending medical negligence claims; unlike other forms of professional negligence, the loss isn’t simply financial.

I certainly don’t feel any shame or believe that what I do prevents justice. Your situation sounds very awful and it may be that the defence solicitors in your case are employing delaying tactics, but that’s not how I operate. When there is a clear case of negligence my advice to my clients is always to settle at the earliest opportunity to avoid racking up costs.

I think you have to appreciate that it can work both ways; I’ve defended many claims in which completely spurious accusations of negligence have been made, with no basis for them. You therefore have to robustly defend your client, or the entire system would break down.

I really feel for you, though, as I know it’s not a nice process to go through. I hope you get a decent resolution soon.

@rwalker

Do you get frustrated when there's clearly a risk nothing is 100% . When it goes wrong they won't accept that thing do go wrong for a small % and this the risk you take .

It doesn’t frustrate me but I think it frustrates my clients. They always want things expressed in very detailed percentages, but risk can be quite a nebulous thing to quantify. I’d say the hardest part of my job is probably assessing prospects of success.

It’s especially hard when your client is convinced they’re in the right, but they don’t have good prospects of success. Convincing them that the risk of defending a claim is too high when they feel they are in the right is often difficult. I’ve had many a tricky conversation on that topic.

@thebakeoffwasntasgoodthisyear

If a claim has been raised within the time limit and then paused, it won’t automatically lapse if there is then no further progress. If there has been a failure to progress for a long time, however, then either party can apply to the court for an order to be made to progress the case.

Thanks for replying. In my case I’m being sued, it has already gone on for 4 years! (It wasn’t medical negligence but a member of the public allegedly sustained an injury on my business premises). They want £3000 compensation, and although I’m dubious about the circumstances, I’d much rather just pay it and move on with my life. Unfortunately it is dragging on and I’ve been advised that the legal costs will likely result in me having to pay out over £10000.

That seems very disproportionate - is there any reason you can’t just offer to settle now?

I hope you get it resolved soon, it must be miserable having it hanging over you!

@OolieMacdoolie Thank you. I think my thinking on this is a bit skewed because of all the delays, but birth injury claims drag on such a long time, that families are exhausted by the end of it. There must be a better way

Do you think a no-fault rather than an adversarial system would potentially be a better and more cost-effective system for compensating people for medical errors?

Hi Op,

What do you think is going to be the next big cause or reason for claims being made?

Thanks

Hi, have you ever defended a claim against someone claiming for sexual assault by a HCP? I’m currently bringing a case against the NHS for this reason

@Allaboutthatbass

Do you think a no-fault rather than an adversarial system would potentially be a better and more cost-effective system for compensating people for medical errors?

I think to an extent the court system is always going to be adversarial, because the parties have diametrically opposed desires for the outcome. But I think it would help enormously if more use were made of alternatives such as mediation. I’ve seen wonders happen when the parties get round the same table and see each other as humans.

The court process can be a blunt instrument for disputes that can be quite nuanced. There is little scope for personal apologies etc, and those things can often make a difference. I have occasionally defended HCPs who acknowledge that they made an error and want to apologise, but aren’t allowed to by their insurers, who pay their legal fees and ultimately have control of the case. It can make things much more combative than they might otherwise be if the HCP and the victim of the negligence could meet as participants in a collaborative process rather than as opponents.

@TomatoesAreFruit

Hi Op,

What do you think is going to be the next big cause or reason for claims being made?

Thanks

Good question! This kind of thing is often discussed in legal circles.

I wonder if there might be claims arising from that umbrella company tax loophole that some self-employed people had used, but who then had to pay back the tax. If any were advised by tax advisers that such schemes were legitimate, they may have a valid negligence claim.

@Blue4YOU

Hi, have you ever defended a claim against someone claiming for sexual assault by a HCP? I’m currently bringing a case against the NHS for this reason

I haven’t had any experience of this myself. I’m so sorry you went through that - I hope you have a good outcome.

Do you think that the decisions you/your client/your client’s insurers take to settle or fight at each stage are different from the decisions that the NHS takes? Are they more or less prone to take it to court?

@MsWarrensProfession

Do you think that the decisions you/your client/your client’s insurers take to settle or fight at each stage are different from the decisions that the NHS takes? Are they more or less prone to take it to court?

I can’t speak for the approach the NHS specifically takes because I’ve never acted for them. But generally I would say that when the case is being directed by an insurer (which I imagine most NHS claims are), they will want to take a pragmatic approach. Insurers hate spending money on wasted costs, so they want to know as early as possible if a finding of negligence is likely, and if so they will almost certainly want to settle. They don’t have any emotional or personal attachment to the case, so they tend to be very economical and pragmatic about it.

What can cause problems even when it is acknowledged that negligence has occurred is when there is a big dispute over the value. I defended a claim against a surgeon who admitted negligence in respect of a breast augmentation procedure. Even though liability was not in dispute there was a protracted disagreement about valuation, because the lady who raised the claim insisted on including a huge claim for loss of earnings even though there was no evidence that the negligence had prevented or would prevent her from working, and she had been unemployed for the two years leading up to the procedure. Cases can start to drag and get very difficult to resolve when an agreement on valuation can’t be reached.

@OolieMacdoolie referencing your last comments about the value of claims. I am sure this is a factor with birth injury claims as they are invariably very high value, and result in a lot of foot dragging and haggling.

[quote notagainmummy]@OolieMacdoolie referencing your last comments about the value of claims. I am sure this is a factor with birth injury claims as they are invariably very high value, and result in a lot of foot dragging and haggling.[/quote]
Yes, I’m sure that’s right. And very hard to quantify - when you’re looking into the future and trying to place a financial value on the span of a whole life, incredibly hard to be definitive and there is so much scope for disagreement. And because the value of the claims tend to be high, there is little willingness to compromise. I would imagine they are some of the hardest claims to place a value on.

@PatrickSmithUS You have until the child is 18 to submit a claim for negligence, as the litigation friend (parent of the child). Obviously a solicitor specialising in birth injury is the person to speak to. With a learning disability/Autism and no physical disability, you are looking at proving a brain injury that occured due to a mismanaged birth. For this to even start you would need an MRI scan, ideally at birth, but injury will show up at any age, showing an injury specific to some kind of hypoxic (lack of oxygen) event occuring around the time of birth. Many children diagnosed with LD or autism or GDD actually have a brain injury which is not diagnosed. The evidence is there but it would need an MRI. They would also ask most likely for genetic testing as that is the great get out of jail card.

Hi Oolie,

I am in the early stages of a negligence claim (I have a CFA agreement with a large firm). My solicitor, on her first attempt to request medical records, received a set of redacted notes. But when I requested the same thing in August (as spouse) I simply received everything. It's peculiar.

Solicitor says, as best she can tell, the family history has been redacted (which is very relevant). We're awaiting an unredacted set.

Am I paranoid in thinking the hospital are going to try and make this as difficult as possible from the outset?