When you make a medical negligence claim, your medical negligence solicitor will always attempt to negotiate an out-of-court settlement with the other party. In the vast majority of cases, a settlement is reached before it goes to trial. But if the negotiations do not go as planned and a settlement cannot be reached, your solicitor will then issue court proceedings. So, what can you do if your case goes to court? Let us find out.
Why are Most Medical Negligence Claims Settled Out of Court?
The complex and adversarial nature of medical negligence claims causes many to assume they will lose out if their case gets to the courtroom. Although medical negligence claim is a legal process, most claims are settled out of court because of the following:
Vetting by Solicitors
Before taking a medical negligence case on, solicitors employ a risk assessment during which they establish that:
You were owed a duty of care by the defendant;
Your injury occurred within the last three years (exceptions apply where children are involved);
The injury was through no fault of your own.
In addition to other factors, the solicitor will determine the possibility of proving each of the above.
Claims are mostly fought (negotiated) by the solicitor of the injured party against the insurance company of the defendant. So, it is important to have a solicitor who has mastered the art of negotiating with the in-house team (usually solicitors) of an insurance company. Both sides will attempt to reach an agreement in the interest of their respective clients and in order to avoid the costs and uncertainty associated with a court hearing.
The bottom line is that nobody wants to go to court for a medical negligence case. Going to court is a drawn-out and costly process that the losing side wouldn’t want to incur.
Why May My Claim Go to Court?
If a settlement cannot be reached through negotiations, then the next step will be to formally issue court proceedings for a judge to review the facts of the case and make a decision based on available evidence. If liability is established, the judge will determine the compensation amount you should receive for the nature of your injuries. Your claim will likely go to court if:
The case is complex
Some of the most complex cases include:
Those involving death of the victim
Injuries involving children
Defendant or insurer is unresponsive
If the defendant or defendant’s insurer is passive or unresponsive, your solicitor can begin court proceedings. This way, the defendant will be legally obliged to respond and, if they are yet to do so, appoint a solicitor to act on their behalf.
Denial of liability
If the defendant denies liability in your case, it can be taken to court. Your solicitor will continue negotiations with the defendant’s up until the trial date as all parties involved will prefer to settle out of court.
If the injury you suffered requires urgent medical care or ongoing expenses and you are unable to cover these costs, your solicitor can apply for an interim payment at the court.
What Happens if My Medical Negligence Claim Goes to Court?
If an agreement cannot be reached between your medical negligence solicitors and those of the defendant, it is now time to issue court proceedings. The process will begin when your solicitor files the claim at the court. The court will then evaluate your case and provide details of how they want to proceed with it. The court’s response will include the dates that more information will be required and a trial date.
Continuation of Pre-trial negotiations
Even after a trial date has been set, the parties involved would still prefer an out-of-court settlement. At this stage and even up to the date of the court hearing, it is still possible to reach an agreement.
What Should Be Done Before the Hearing Date?
Getting a hearing date can take so long because a number of steps are required for claimants and solicitors to prepare for a court process. This is to ensure the judge has all relevant evidence for a fair hearing. Documents required prior to a court hearing include:
Any documentation that helps prove your claim such as receipts for expenses incurred and up-to-date medical reports.
An up-to-date schedule which lists the financial losses caused by the injury
Statement showing what evidence that would be presented by witnesses at the hearing
Any other documents the judge deems necessary to ensure a fair hearing.
Will I Have to Go to Court in Person?
Not necessarily. If the estimated value of your claim ranges between £1,000 and £25,000, then your medical negligence solicitor will represent you and present the claim on your behalf. If the estimated value of your claim exceeds the £25,000 mark, you may be expected to be present in court so you can answer questions regarding events leading up to your injury.
If you attend the court session, you will be questioned by your representative and the representative of the defendant. If you have any witnesses, they will also be called to make a statement one at a time. Once the judge has heard the accounts of both parties, he or she will deliver a ruling. The ruling will state who was at fault in the case (if this was in dispute) and the compensation amount you will receive for the injuries and losses you incurred.
What Can I Expect at the Trial?
A senior barrister or solicitor will first present your case to the judge. The solicitor representing you will be present as you are questioned by him/her and the solicitor on the other side. Keep in mind that the judge will not be made aware of any settlement discussions you may have had with the defendant. If the judge finds the defendant liable in your case, the compensation amount will be calculated based on two key areas:
The pain, suffering and loss of amenity you have experienced (this will be calculated using the Judicial College Guidelines)
Any financial losses incurred as a result of the injury, whether this is loss of your current income source or future estimated earnings. You may also be awarded compensation for loss of pension, care costs, and adaptative equipment required for your home.
You may receive the final compensation amount as a lump sum, as regular payments through your lifetime, or a combination of both.
If your medical negligence case goes to court, then you should get in touch with a solicitor. If you have been trying to handle the case on your own, this is the time you need the help of a specialist solicitor. Keep in mind that the other party reserves the right to request more information and even additional tests to build their defence. Also understand that a case going to court does not mean it cannot be settled prior to the trial date.
Contact A Specialist Solicitor Today For A Free Claim Assessment
How Medical Negligence Direct Can Help
We work with a panel of specialist solicitors who will fight to secure the maximum compensation you deserve, as these solicitors have a strong track record of winning medical negligence claims. If you have any questions or would like to make a No Win No Fee medical negligence claim, talk to us on 0800 644 4240. One of our friendly solicitors will be happy to speak with you.