Where do I take this with my solicitor regarding medical negligence?

[Shittenshite]

First off, I'm REALLY sorry to be deliberately very vague and not provide much information but my case is so incredibly unique that any information would absolutely identify me which in turn could potentially jeopardise a legal case.

I gave birth extremely premature to twins. One survived, but sadly the other did not. Immediately prior to this we believe the hospital missed several opportunities to identify the severity of the situation I and my babies were in. They did nothing when they COULD have done X, Y and Z.

Incredibly long story short, it's been with a solicitor for some time to no avail. They need a causation report. There's no doubt in their mind that negligence was involved on more than one aspect of this, however they need to prove beyond reasonable doubt that this negligence CAUSED the outcome, or that the outcome WOULD have been different had they acted appropriately. To do this I would need to pay for a report from a private consultant (ie obstetric consultant) which would cost around £3k. We've already spent that much on reports (not from consultants) and do not have such cash 'lying around'.

There's a chance that IF I funded this report and they decided that the end result would have been the same even if the professionals involved had acted appropriately, then it'll be £6k down the drain. I realise that's a choice only I can make.

I do wonder if I could source and pay for such a report directly and NOT through a solicitor. IF that were possible, how would I go about it and would it be any cheaper?

Is there anything else I could try?

Any advice much appreciated.

I’m sorry for your loss
It might be worth asking your solicitor for a breakdown of costs so you can see how much of the £3,000 the consultant charges and how much is for the solicitor for letters and interpreting the report etc.
I found a link to a company that have multiple expert witnesses that write reports, and a consultant that works for Nuffield that provides expert witness reports -fees available on request. You should at least be able to get an idea if it’s worth seeking a report yourself or letting your solicitor to organise it all.

I hope you are able to get some definitive answers.

https://www.mylestaylor.co.uk/medico-legal/

https://www.expertcourtreports.co.uk/obstetrician-and-gynaecologist-expert-witness/

Im sorry your loss.

There’s nothing to stop you getting independent quotes for this report.

It can be done. Within the area I work you would expect to pay approximately £600 an hour plus vat for a negligence report including time reading the notes and examination/history if appropriate.

Standard expert witness fees are lower but generally get doubled for negligence cases in my experience (high odds of not getting paid and losing money due to short notice court adjournments need to be offset).

Your report would need to be compliant with part 35 of the Civil Procedure Rules to be of use.

It is highly likely that the majority of the cost of the report is the consultant's hourly rate and that won't change, so by getting your own report you wouldn't save much but you risk compromising your position or wasting money.

I appreciate it is a lot of money, have you looked into legal expenses insurance or a conditional fee agreement?

Sorry for your loss. Was there any serious incident investigation or patient safety review initiated. Have you got your medical notes via DSAR or had a debrief with a specialist midwife? If not , start with PALS who may suggest raising a complaint.

Thank you so so much to everyone who has commented and offered helpful advice and links, it is really appreciated! Thank you also for your condolences.

I'm sorry I haven't returned to the thread to reply. Yesterday was extremely busy and today is much of the same. I will come back and give you proper replies as soon as I can.

Just quickly though, so I don't leave more questions than answers, I've already been through the official complaints procedure AND the Ombudsman but again can't give details of their outcomes without revealing too much detail. I know it's frustrating for those of you who've offered help and advice and I'm genuinely sorry but I am so grateful for all the replies, they're extremely useful and most of it I didn't know already. I will follow up every suggestion made as soon as I can and will update accordingly.

Thank you again!

Sorry for your terrible loss.

I am a bit concerned that there may have been a miscommunication between you and your solicitor:

Incredibly long story short, it's been with a solicitor for some time to no avail. They need a causation report. There's no doubt in their mind that negligence was involved on more than one aspect of this, however they need to prove beyond reasonable doubt that this negligence CAUSED the outcome, or that the outcome WOULD have been different had they acted appropriately.

This doesn't make sense. In order for the solicitor to know that there is negligence, s/he would already have to have evidence of causation, and of there being a greater than 50% chance that the outcome would have been different if the hospital had acted differently (not beyond reasonable doubt - that's the standard for criminal cases). So your solicitor is not currently in a position to know whether or not there is negligence: they may feel there is evidence of substandard practice (breach of duty of care), but that doesn't necessarily mean there was negligence.

Please believe that I am not trying to be arsey or a pedant - I just don't want you to spend a huge amount of money, under the impression that the case is stronger than it really is. It might be worth talking to your solicitor again, to make sure you understand exactly where you stand, before you decide what to do next.

Poor or less than ideal care is one thing but evidencing causation that it led to a worse outcome is much harder.

I would be inclined to find a solicitor who will work on a conditional fee basis else it could cost you a lot of money and additional heartache.

I am very sorry for your loss. As with others however, I would strongly advise looking at a CFA. This is how most medical negligence cases are funded and most solicitors that practise in this area are used to them. If your solicitor has declined to enter into a CFA as the merits are insufficient, then I would think very carefully about proceeding. If you lose, you will not only be liable for your costs, but also the other side. That can be tens of thousands.

Clinical negligence solicitor here. How are your solicitor's fees being funded? By CFA(no win no fee)? Do you have insurance in place, either through your own insurance (before the event) or an After The Event insurance policy? Most decent clinical negligence firms will provide the initial funds for the expert report as long as insurance cover is in place. It's rare these days for firms to ask for payment upfront. There are also medical agencies who can fund the reports, again as long as insurance is in place. I would speak to the firm and see if this is an option. If not, it might be worth looking into transferring your case because it will only get more expensive and I really would not recommend starting court proceedings without insurance cover in place.

Hi OP. I have a feeling you have misunderstood the position re costs with your solicitor.

If they are acting on a conditional fee agreement or CFA (aka no win no fee basis) then you will have an insurance policy (either before or after the event insurance, aka ATE or BTE insurance) which will cover your disbursements (anything that your solicitor spends on your claim that isn't their time - so medical reports, the cost of obtaining records etc etc.) The cost of the previous report, along with any future reports, should be covered by this insurance.

If they are suggesting that you need to pay for the next report yourself I suspect that this is because they have obtained evidence which means that they no longer think your case has a reasonable prospect of success (more than a 50% chance) which means that the insurer wouldn't pay for the report.

If your solicitors are not acting on a CFA basis, or insurance has not been obtained to cover this claim, then I would suggest that something has gone very wrong somewhere.

I was a solicitor in this field until very recently and it would be extremely unlikely for a case of this type to not be run as a no win no fee (as why on earth would anyone pay when there are 100s of firms who would take it on in a way which is essentially free to the client!)

Apologies if I have misunderstood and spoken out of turn but I wanted to try and clarify this for you and suggest that you return to your solicitor to discuss further as I suspect that this might just be a case of crossed wires.

Hi, sorry I haven't updated for ages. Life is too busy.

I don't know if the solicitor was ever working on a CFA. He wanted 1k & VAT initially which I paid, and since then its been a case of "oh, I need 300 for this or 750 for that". It has been never-ending. He never mentioned a CFA and when I asked if he'd take on the case on a NWNF basis he said no solicitor would take on a medical negligence case on that basis. He told me (and in my naievity and trusting him, I didn't look into it myself), he told me the only way to proceed was for his team to look through medical reports, write their own report, then if they felt I had a 51% or more chance of winning the case then they could apply for legal aid.

I feel now that he's been stringing me along, allowing me to do most of the research, correcting his team for missing vital bits of information even though they already had then to hand, and asking for more and more money. I walked away before they gave an answer as to whether or not they felt I had a case because I just couldn't stand his manner a second longer. They were almost certainly going to say no anyway.

I've since contacted another firm who advised me to contact The Law Society to see where I go from here.

The Solicitors' Regulation Authority handles complaints about solicitors, not the Law Society.

My DH instigated a NWNF claim against his employer for injury in the workplace - nowhere near as traumatic as your situation, but when he first spoke to them, they said they would first speak to their insurers as they would need an indemnity policy to cover the costs could his case fail. It sounds like your solicitor has no idea what they’re doing.
Have you researched the cases of the group who acted against a Health Authority recently because of failures in the midwifery service leading to deaths and injury in babies in Shrewsbury? I listened to a Woman’s Hour programme about this quite recently. There may be some help from listening to this that you can glean.

It might be late now but has your house insurance got legal cover ? Mine covers medical negligence and all of the reports etc

I'm concerned you are being exploited by your solicitor.

Most negligence is done on NWNF or home insurance. It's totally normal for the solicitor to get your notes, commission a report and then decide whether or not to go ahead on that basis.

Yours seems to be finding a lot of cash from you.

Hi OP. Hopefully you have found some alternative advice and a CFA option where you don't have to pay for the report but happy to provide some advice if not - if there are reasonable prospects of the case in terms of failures then you should be able to get a causation report under CFA funding

Thank you for your reply. I am still battling this out like crazy. Having walked away from the original solicitor and found another, they decided they could take on the case but only if we were privately paying (not because we don't have a strong case but other reasons I frustratingly can't share on MN). So, we're looking elsewhere.

I've given two other solicitors an overview of what happened and both have asked me to email them full details and medical reports over the weekend which I am yet to do. It is my highest priority but I still feel a bit stuck and very very angry that the original solicitor wasted 6 months and £3k to get absolutely nowhere (good or bad) because he and his team didn't do the job we paid them to do (the report was shoddy, incomplete with huge gaps they refused to fill). Recent Google reviews on that same firm suggest they're doing this to other people as well - stringing them along but asking for more and more money.

I've warned both the solicitors (the ones awaiting my emails) that there is a HUGE amount of information relating to the case. Both, in essence, think that from what they know so far, we have a good case, and they would take it on the NWNF agreement, but obviously they need all the facts before they can give the nod to continue.

I am yet to instruct anyone and am not in any kind of contract.

They did, and I feel like an absolute idiot for not seeing it sooner.

On the back of your reply I looked through my household insurance documents and found from those that I do have legal cover. I did contact my insurer but they said the policy doesn't cover medical negligence.

Thank you for your reply and I'm sorry I didn't have the courtesy to respond to you sooner!

Well sounds like you have some options which is good - if it is a case with merit then you should be able to get a CFA. In terms of providing info - in terms of your possible firms assessing it, a chronology of key events, a list of the things you are concerned about and any key letters (clinic or complaints etc) that set out the key information is really helpful. Good luck and if you get stuck drop me a line - happy to give you a steer