BPP University College Of Professional Studies Limited (BPP)
Medical Negligence Workbook from BPP University (LPC) summarised. These notes are 28 pages long and summarise all the material that is found in your 225 page long workbook in a logical layout that is easy to understand. What these notes don't contain: activities from the workbook and solutions to t...
BPP University College Of Professional Studies Limited (BPP)
BPP University College Of Professional Studies Limited
Medical Negligence and Personal Injury law
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CHAPTER 1 Welfare benefits:
INTRODUCTION If client has suffered a serious injury and they are unable to work – advise
them to seek benefits from the Department of Work and Pensions. Then
None of the cases in this chapter are examinable. ensure that you record the amount of benefits received as this will affect
the compensation.
TYPES OF CLAIM:
Funding:
Explain the various funding options available to client.
Road Traffic Accident (RTA) Public Liability (PL)
Costs:
If an injury arises out of a road If an injury arises out of public use of Give client a time and costs estimate of the claim.
traffic accident. products or premises - eg. tripping over the
uneven paving in the street. CPR 44.2 General costs principle
LIMITATION:
Employers Liability (EL) Medical Negligence (MN) Primary limitation period – PI claims:
3 years from:
If an injury arises during the If a patient suffers an injury as a result of 1. date on which the cause of action accrued – accident date
course of employment - eg. negligent treatment administered by a
injury due to defective medical professional (doctor/nurse/ OR
machinery. dentist) 2. s.11(4) Limitation Act 1980 date of knowledge of injured party
whichever is later.
FIRST INTERVIEW: Marren v Dawson [1961] The actual date when the action accrued or
Clients first request legal advice to see if they can bring an action for date of knowledge is not included.
personal injury/other losses. Example:
Free first interview: Ann was involved in an accident at 9 pm on 15 Sep 2017. When does the
* Firms dealing with personal injury (PI) and medical negligence limitation period expire? – The limitation period for PI claims is 3 years
(MN) often offer a free first interview – encouraging to clients from the date of the accident so, excluding the date of the accident, it
* Ascertain if the client has a claim worth pursuing. If so, advise will expire on 15 Sep 2020. Ann will have until that date to issue a claim.
about the funding options available to client. Date of knowledge:
* Assess the risks. A Claimant (C) may also bring a claim after the limitation period. – Eg. it
Identify facts: may be years after an operation when the patient experiences
* Encourage clients to tell the whole story. unexpected symptoms. This is also common for industrial disease cases.
* Assess whether client has a cause of action and useful evidence. s.14 LA 1980 The injured party will have knowledge when they realise:
* Establish what evidence is missing for proving liability (duty and a) that the injury was significant
breach), causation and quantum (the value of the claim). b) that the injury was attributable (wholly/partially) to the act or
* Ask client to fill in a questionnaire detailing the circumstances of omission constituting negligence/nuisance/breach of duty
the accident and the losses suffered. c) C knows the identity of the Defendant (D)
To establish liability: AND
* Carry out a site visit d) if act/omission was that of a person other than D, the identity
* Obtain photos of the accident location of that person and the additional facts supporting the claim.
* Obtain witness statements Expectation to acquire ‘knowledge’:
* Obtain a liability expert’s report If C wants the limitation period to start from their date of knowledge,
* Obtain evidence of a criminal conviction C must prove the date when they acquired the knowledge.
* Retain real evidence for inspection – machinery, torn clothing
To establish quantum: s.14 LA 1980 Knowledge includes constructive knowledge.
* Collect receipts/invoices from client Constructive knowledge = knowledge that he might reasonably have
* Collect occupational records/pay slips – to prove lost earnings been expected to acquire by making enquiries/seeking expert advice.
* Ask client to keep a diary of how their injuries are affecting them Persons under a disability:
on a daily basis; One exception to the limitation period is when one of the parties
* Obtain photos of client’s injury – bruising/swelling/scarring may suffers from a disability.
improve over time
* Obtain witness statements s.38(2) LA 1980 A party is legally disabled if:
* Obtain medical evidence * they lack capacity to conduct proceedings – Mental Capacity
After the interview, use all the facts to draft a proof of evidence (= Act 2005
summary of client’s case, opinions, suspicions and hypotheses) This OR
document is different from the client’s witness statement, which must * they are an infant (under 18)
only contain admissible evidence. s.28(6) LA 1980 If C is under a disability on the date when cause of action
Identify the client’s goals: accrued, limitation period expires 3 years from the date when the
* Ask client about their goals. Some clients are simply looking for disability ceases.
an apology. A solicitor may only assist if the client wishes to claim Example:
compensation. If an accident occurred on 15 Mar 2015, but injured party is an infant
* Tell clients if their expectations are unrealistic at an early stage. (DoB: 16 Feb 2000), limitation period does not expire until 3 years after
Preliminary advice on limitation, liability and damages: the injured party’s 18th birthday (16 Feb 2021). If a PI accident occurred
During the first interview, ask client when the accident happened to on 15 Apr 2015 and the injured party lacks capacity on that date, the
determine when the limitation period expires. The date should be limitation period does not expire until 3 years after the date when the
recorded in the firm’s case management system. disability ceased (20 Jul 2018).
If there is no obvious accident date – find out exactly when client had Extending the limitation period:
‘knowledge’ of a claim. If C fails to commence a claim within the primary limitation period, C
becomes barred from commencing a claim.
At the end of a first interview, client will want to know: s.33 LA 1980 C can apply to extend the limitation period. The court has
1. Do they have a claim? discretion to extend the limitation period if it would be equitable to do
2. How likely is it that they will win? so, having regard to the balance of prejudice to each party.
3. How much compensation are they likely to get?
4. How much will this cost them? s.33(3) Court should consider all the circumstances of the case such as:
Give preliminary advice on liability and quantum but make it clear that a) Length/reasons for the delay
advice at this stage is subject to further evidence. The burden of proof b) Effect of the delay on the cogency of evidence
(balance of probabilities) is on C. c) D’s conduct
d) Duration of C’s disability arising after the cause of action
Medical Negligence – Workbook – Notes | Page 1 of 28
, e) Whether C has acted promptly and reasonably once they knew CPR 21.4(3) Anyone can act as a litigation friend if they:
that the injury was attributable to a negligent act/omission • can fairly and competently conduct proceedings
AND • have no conflict of interest with the child/protected party
f) The steps C took to obtain medical/legal/other expert advice and AND
the nature of advice. – eg. if received bad advice • if child/protected party is a C – undertake to pay any costs
orders.
Coad v Cornwall Health Authority [1997] The court should apply a
subjective test when considering why C delayed. CPR 21.5 Procedure to becoming a litigation friend:
File certificate of suitability stating that they satisfy the CPR 21.4(3)
PRE-ACTION PROTOCOLS: conditions.
5 protocols governing the conduct of MN and PI claims: Settlement and compromise:
(a) Pre-action Protocol for Personal Injury Claims (PI Protocol);
(b) Pre-action Protocol for Low Value Personal Injury (Employers’ CPR 21.10(1) Court approval is needed for accepting settlement/
Liability and Public Liability) Claims (EL and PL Protocol) compromise on behalf of a child/protected party.
(c) Pre-action Protocol for Low Value Personal Injury Claims in Road
Traffic Accidents (RTA Protocol) If settlement/compromise is reached before the commencement of
(d) Pre-action Protocol for Disease and Illness Claims proceedings – commence claim under CPR 8 and request court approval.
(e) Pre-action Protocol for the Resolution of Clinical Disputes
PD 21 CPR If seeking court approval on behalf of child/protected party:
ADMISSIONS OF FACT/LIABILITY: 21 PD 5.1(6)(b) If child/ protected After proceedings are issued: make
party is C in a PI case, before an application for court approval.
In order to save time and costs, CPR encourages parties to make proceedings are issued: must file Para 6.4(3) Send to court the
admissions of fact/liability. medical and quantum reports and quantum of counsel/solicitor
CPR 14.1(1)-(2) Admissions may be made pre-action or after bringing a joint statements. including all documentary evidence
claim by written notice to the other party. C may then enter judgment material to the case.
(except if children/protected parties are involved).
CPR 21.10(2) C’s litigation friend must issue proceedings to obtain court
Effect of an admission: approval of a settlement/compromise made at pre-action stage.
* Only quantum will have to be resolved OR
* if insurer withdraws the admission of liability – C has to revert Control of monies:
to proving their claim against D.
CPR 21.11(1) If monies are recovered on behalf of child/protected
Withdrawal of an admission: party, monies must be dealt with as per court directions.
A party may withdraw a pre-action admission: EXPERTS:
1. Before commencement, by giving notice in writing, if the other
party agrees - CPR 14.1A(3)(a) Selecting the type of expert:
2. After commencement, if the other party agrees or with court CPR 35.1 A solicitor must decide on the type of expert necessary to
permission - CPR 14.1A(3)(b) assist court in resolving the issues in dispute.
14 PD 7.2 When deciding on giving permission, court will consider: C solicitor: Ensure that you understand client’s medical problems/
* grounds for withdrawing the admission financial losses.
* if new evidence has come to light
* the parties’ conduct D solicitor: Ensure that you understand client’s medical problems/
* prejudice to any person if the admission is withdrawn/refused financial losses. Ensure that you have all evidence to value C’s case but
* at which stage in the proceedings the application is made avoid paying for unnecessary reports.
* prospects of success if the admission is withdrawn
* interests of the administration of justice Selecting an expert:
1. someone whose integrity is beyond doubt
CHILDREN AND PROTECTED PARTIES: 2. whose experience/reputation are such that they will be able to
give objective evidence and can withstand cross-examination.
If C is a child/protected party – C is incapable of pursuing a claim on
their behalf. Instruct the expert at the right time:
CPR 21.1(2) Child = a person under the age of 18 years. A single report:
C is restricted to one medical report. If C wants to rely on further
s.1-2 Mental Capacity Act 2005 Protected party = a person unable to evidence, they must apply for court permission.
make decision when necessary due to impairment/disturbance of mind.
Fixed fees for medical report:
An adult is presumed to have capacity until proved otherwise. CPR 45.19 Medical report fee is fixed at £180 plus VAT. If C obtains
a medical report above this fixed fee, the cost won’t be recoverable.
CPR Part 21 Test: Is protected party able to understand, with assistance
from legal advisers/other experts, the issues necessary to understand Medical expert must be impartial:
in the course of proceedings. Experts must not provide/offer to provide treatment to C and if they
do so they must not charge a fee.
Martin Masterman v Brutton [2002] Factors to determine incapacity:
a) Can the person recognise problems? Medical expert must consider both version of events:
b) Can the person clearly explain the problem to lawyers? D must provide their version of events to C in response to a claim.
c) Can the person understand/evaluate the advice they receive? C then must send this to the expert for consideration.
d) Can the person understand the effects of choosing one course
of action over another and give instructions? Personal injury claims:
When in doubt, solicitor may request an assessment and report by In PI claims, C must obtain expert medical advice regarding the injuries
client’s GP or in serious cases, a psychologist/psychiatrist. (condition and prognosis report) during the pre-action stage.
Litigation friend: In complex PI claims, also obtain:
* quantum reports regarding financial losses/expenses incurred
Court of Protection = court dealing with cases relating to as a result of the injuries or
children/protected parties. * liability report, if liability is in dispute.
CPR 21.2(1)-(2) Children/protected parties must instruct a litigation Medical negligence claims:
friend to conduct proceedings on their behalf. – eg. parent of minor,
family member/friend or solicitor. In MN claims, in addition to condition and prognosis reports, also seek
expert opinion as to liability and causation. Liability and causation
CPR 21.2(3) If they want to conduct proceedings without a litigation experts can be instructed during the pre-action protocol stage without
friend, child/protected party must apply for a court order. court permission.
CPR 21.4(2) Court may appoint litigation friend for the protected party.
Medical Negligence – Workbook – Notes | Page 2 of 28
, Status of reports:
QUANTUM REPORTS:
Own expert evidence:
Condition and prognosis report: Carlson v Townsend [2001] If a party obtains its own medical report
after a pre-action protocol commenced and does not rely on it, that
A condition and prognosis report will help you establish: report will be privileged. However, that party will need court permission
* C’s injuries before relying on another expert’s report.
* C’s treatments
* Future treatments C may need Edwards-Tubb v JD Wetherspoon [2014] All expert reports in relation
* The extent of any ongoing symptoms to a claim must be disclosed, whether favourable or not.
* C’s prognosis (time-scale for recovery)
Odedra v Ball [2012] If an expert produced more than one report but
Instruct experts with different specialities depending on the type of disclosed only one, the expect cannot be ordered to disclose the report
injury. if that would give rise to injustice.
Additional quantum reports: Discussions between experts:
CPR 35.12 The court may direct that experts have a discussion to:
a) identify and discuss issues and
In complex claims where C requires treatment/daily care: b) to agree on the opinion on those issues if possible
Instruct one of the following experts to quantify the cost of
treatment/living expenses: Aids and Equipment expert,
Physiotherapist, Occupational therapist, Speech therapist, Architect, FUNDING
Care expert.
Funding options:
In complex claims where C: * Privately paying
1. cannot return to work for a long time * Trade union funding: If client is a Trade Union (TU) member,
2. can only return to work part-time the TU may be willing to fund the claim.
3. cannot return to their employment and has to seek lower paid * No win, no fee agreements: CFAs and DBAs
employment OR * Legal aid
4. will never return to work * Insurance
LEGAL AID FUNDING:
Instruct any of the following experts to quantify future loss of earnings Explain to client how their publicly funded status will affect the costs.
and loss of pension: Employment consultant, Forensic accountant,
Actuary/pension’s expert Personal injury:
Part 2 Sched 1 Legal Aid, Sentencing and Punishment of Offenders Act
Obtaining an expert report: 2012 Excluded from legal aid: PI or death. Such cases are suitable to run
on a conditional fee agreement or Damages Based Agreement basis.
Do not obtain expert evidence until seeking a court direction that such
expert evidence is necessary or you may be punished in terms of costs. Medical negligence:
LASPO 2012 Most MN claims are excluded except for infants left
Joint selection: *C selecting both experts or single joint expert* severely disabled due to MN.
The tactical advantage of joint selection is to put D on the back foot Para 23 Part 1 LASPO 2012 Legal aid is available if medical negligence
regarding obtaining its own evidence. caused a neurological injury and C is severely disabled as a result.
C solicitor proposes one or more expect(s)
NO WIN NO FEE AGREEMENTS:
Within 14 days Conditional fee agreements (CFA):
D solicitor does not object C solicitor objects to all experts CFA = an agreement between a solicitor and client where payment of the
solicitor’s fees is conditional on winning the claim.
C solicitor instructs expert from the C and D solicitors can instruct
proposed list. C and D solicitors can their own expert, if not s.58 CLSA 1990 CFAs must:
then put questions to expert. agreed. 1. Be in writing
2. State the level of success fee (max 100%)
D solicitor cannot obtain own If proceedings are issued, 3. State that success fee is subject to a maximum limit
evidence unless agreed by C court will consider whether 4. Max limit must be expressed as a percentage of damages and
solicitor or court the parties acted reasonably must not exceed 25% of damages in PI cases – s.44 LASPO 2012
If the client wins the case:
Single joint instruction: Pays to the solicitor: basic fee, disbursements, success fee (pays out of
PD 35 Instructing one single joint expert will minimise costs and delays. pocket), insurance premium (pays out of pocket).
CPR 35.7 The court may make a direction to use a single joint expert. Recovers from the other side: solicitor’s basic fee, solicitor’s
PI Protocol The joint selection of experts should be encouraged rather disbursements, damages
than joint instruction.
If the client loses the case:
Liability experts: Pays to the solicitor: disbursements, insurance premium and damages
if there is a successful counterclaim
PI claims: Recovers from the other side: nothing
If liability is in dispute or it is difficult to establish the cause of accident,
instruct a liability expert. Damages based agreements (DBA):
MN claims: Reg 3 DBA Regs 2013 DBA’s terms and conditions must explain why
* A liability report must always be obtained as a first step. Expert payment was set at that percentage.
opinion will determine whether the clinician’s actions/failure to
act fell below the standard expected of a reasonably competent s.45 LASPO 2012 DBAs must:
clinician in that field. 1. Be in writing
* If so, also obtain a causation report to establish if the clinician’s 2. Not require payment by client apart from costs, counsel’s fees
actions/failure to act caused the injury. and VAT – Reg 4 DBA Regs 2013
3. Be made only after the lawyer has explained the DBA’s terms and
One expert is usually sufficient. conditions
Obtain all necessary evidence to prove C’s claim but do not obtain 4. Not set out a payment above the limit:
evidence not reasonably required for the resolution of the claim. * 25% of damages in PI cases
* 35% of damages in employment cases
Do not use an expert who: * 50% of damages in all other cases
• is involved in the case
• works at the same hospital/practice as D or If lawyers lose the case, they do not recover any fees.
• treated C as they may be unduly optimistic in the prognosis.
Medical Negligence – Workbook – Notes | Page 3 of 28
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