Alternative Dispute Resolution (ADR)

Where a claim has been submitted and an agreement on liability or compensation due cannot be reached, the case must go to court proceedings. However, the courts will expect that, at all stages, the parties to the medical negligence claim must consider whether it can be settled without the need for further court involvement. This is known as Alternative Dispute Resolution (ADR), and covers several different mechanisms, including offers of settlement, mediation, and joint settlement meetings.

Breach of Duty

All medical professionals owe their patients a duty of care. This means that they are obligated to maintain a high standard of care and to ensure patients are never put at any unnecessary risk. Where negligence occurs, this is known as a breach of duty, and when this can be proved to have caused injury or illness, the patient is entitled to make a claim for compensation.

Claimant

This is the term given to the patient who has been injured or made ill due to medical negligence and as subsequently brought a claim for compensation.

Compensation claim

This is the term given to the legal pursuit of financial recompense for injuries or illnesses sustained as a result of medical negligence. Claims can be pursued by the victim themselves, or via legal representatives.

Court proceedings

Court proceedings refers to any activity that occurs in a court. Not all cases will progress to this stage, as compensation can usually be negotiated between the involved parties. It is rare that either side would wish the case to proceed to court.

However, if there is a dispute over who is at fault, or negotiations over the final amount of compensation due cannot be completed between the involved parties, cases may be taken to court, where a judge will preside over proceedings and determine the correct outcome.

Damages

Damages refers to the compensation awarded for different losses – or damages – incurred by the negligence. For example, general damages refers to the sum awarded for the pain, suffering and loss of amenity (the loss of quality of life) inflicted by the negligence, while special damages is the total awarded for any financial losses (both those that have already occurred, and expected future financial losses).

Defendant

This is the term given to the defending party in any litigation; in the case of medical negligence, it could be a doctor, nurse or other individual medical professional, or the medical institution as a whole.

Disclosure

Medical negligence cases have a strict duty of disclosure, as it is recognised that the courts cannot deal with the case justly if it does not have access to all the relevant materials. This means that both parties must disclose all documents pertaining to the case, whether they support their own stance or not.

Letter of Claim

To begin any compensation claim, a formal Letter of Claim is sent to the party at fault, usually by your solicitor. It explains that you will be seeking compensation for medical negligence, setting out the details of the case and the injuries or illness caused by the alleged negligence. The defendant has 14 days to acknowledge the Letter of Claim.

Letter of Response

This is a formal letter responding to a claimant’s Letter of Claim. It should detail the extent to which the defendant admits liability. This could be a full acceptance of blame, a denial of any liability, or an admittance that negligence did occur, but they do not accept the blame for any injuries.

Liability

This is a legal term identifying a person at fault for an accident or negligent treatment. If you are found to at fault, you will be liable to pay compensation for any damage or injuries caused.

Pre-Action Protocol for the Resolution of Clinical Disputes

The Medical Negligence Pre-Action Protocol is an official procedure which aims to encourage the parties to settle medical negligence claims without the need for court action. The courts insist that this procedure is followed and if it is not, and a claim is issued in court, then this could have adverse consequences for the party that has not complied with it.

Schedule of Loss

This is a document that sets out the extent of the damages to the claimant and its financial value. It should include both general and special damages. Once this has been served to the defendant, they will have the opportunity to serve a Counter-Schedule of Loss.

Introduction to medical negligence claims

Settling your claim out of court with the Pre-Action Protocol

When happens with the Pre-Action Protocol is unsuccessful