Liability in a clinical negligence case
Parties involved in clinical negligence are expected to try to reach agreement about their claim without using the court process when that is possible. The court rules require the parties for example to tell each other what they say happened at the time of the incident and disclose evidence to support their case to try to facilitate resolution of the claim and settlement.
Initial stages of the claim
When sending our 'letter of claim' to the defendant we will give them a detailed description of the incident circumstances following our discussions with you and having obtained copies of your medical records, analysed them and often having obtained preliminary medical reports. The defendant has 21 days to acknowledge that letter and a further four months to investigate the incident circumstances before making their decision about liability and providing a reasoned response. Sometimes defendants take less than four months to reach a decision but where the circumstances are complicated or evidence is difficult to obtain, they may need to ask for more time.
When liability is accepted in full
It is then a matter of obtaining the appropriate medical evidence in respect of your injury and proof of financial losses to enable the parties to agree the amount of compensation payable.
Where liability is disputed
The defendant may deny breach of duty and/or causation. They may blame another party or they may blame you. If liability is denied we will review our evidence, assess the points made in the defendant's response and discuss the case again with our experts and you. It will then be necessary to decide about commencing legal proceedings.
Assessing the evidence
Of course you, the defendant and any witnesses were actually there when the incident happened. We were not and neither was the defendant’s solicitor. Crucially, if your case is decided by a judge in court, the judge was not there either. Therefore, we have to assess what evidence will be available to produce to a judge and consider how that evidence might support either party’s version of events. This would include your own witness evidence, details stated in the medical records, other witnesses' evidence and evidence contained in the medical reports. We have to review the evidence objectively. Even though we have every confidence that you are justified in trying to pursue a claim because of the incident, we have to consider whether or not we will be able to prove the elements of the case to the standard of proof required in a court of law.
The burden of proof
This is on you as the claimant to prove all the aspects of your case. In court you will be required to satisfy a judge that the defendant breached its duty of care to you which, on balance of probabilities, resulted in your injury. It is not up to the defendant to disprove what you say but the onus is on you to produce evidence to prove it.
Based on our assessment of the evidence we may sometimes suggest that we make proposals to the defendant to settle your claim at less than 100%, taking into consideration that there are risks with any litigation.
When liability is contested it would mean if you were to lose you would get nothing. Therefore, it may be attractive to enter into a settlement which would reduce that risk and still mean that you achieve most of your claim.
What happens if we cannot reach agreement?
If we feel that we have a strong enough case to recover more than the defendant is prepared to offer in relation to liability, we may recommend that we issue court proceedings. All the evidence would then be presented to a judge in court who will assess it and make a decision as to whether the clinical negligence is proven, what it caused as a result and what the correct value of the claim should be.