You have been seriously injured while being treated in hospital. However, you are unhappy at the treatment that you received, which you believe caused your injuries. Perhaps an operation went wrong; or you were not taken seriously enough and diagnosed too slowly; or you were given a drug you think you should not have been given. Whatever happened, you think something went avoidably wrong and you have suffered as a result. Or maybe it has happened to a close member of your family for whom you now have to care.
So you do some research on the internet. Or maybe you ask a friend who is a doctor, has a medical background or who works in the NHS. They agree with you and say that they, too, are concerned about the treatment you received. You think you may have a claim against the doctor or the hospital for your injuries, a claim for medical or clinical negligence. You now need to find a solicitor to represent you.
Most clinical negligence claims are very complex, regardless of how much they might be worth in damages; value does not always correlate with complexity and even modest value claims can be medically very difficult. Given the specialist nature and difficulty of the work, it is very important that, at the outset, you choose the right solicitor for your case and that you, and your solicitor, ensure that it is properly investigated before concluding that you have no case.
So, before you start, choose your solicitor carefully. It might be helpful to prepare an initial shortlist of solicitors’ firms and individual solicitors, and then narrow it down. But how do you work out who is on the initial shortlist and who stays on it? Some points that you might want to factor in as you try to answer that question are listed below:
- Location: It would be easy to think that your “local” or “high street” solicitors’ firm will be able to help, but many such firms either do not do this type of work or do so too rarely to be considered specialists, so will not be suitable. A firm that does personal injury work is not necessarily a firm that does, or can do, specialist clinical negligence work, so check this carefully. Nowadays, most litigation can be conducted at distance with correspondence being increasingly carried out electronically, so it is not necessary to use your local solicitor who is ‘just down the road’.
- Legal expertise and experience: You want a firm that is expert in this area of law, so choose a firm that contains known clinical negligence specialists. There can be little doubt that you will benefit from an individual solicitor who has significant experience and expertise of medical law; indeed, some specialist solicitors have a particular interest in a particular area of medical law, which may sometimes be an advantage. For example, if you have a child with cerebral palsy or an adult family member with a brain injury, you will probably want a solicitor who has considerable experience of running and settling high value cases. You may want a solicitor who is formally accredited, so look for solicitors who are members of the AvMA Referral Panel and/or The Law Society Clinical Negligence Accreditation Panel, or preferably both. You may want your solicitor to have trial and/or advocacy experience.
- Size: It may be worth considering only firms that have a sizeable clinical negligence department, with access to a large internal knowledge base, specialist internal medicolegal resources and a large “bank” of tried and tested experts, barristers and other third parties who may be required during the case.
- Medical expertise and experience: Some clinical negligence specialist solicitors are dually qualified in medicine and law, and this, too, may be an advantage, as they will often understand the scientific and technical aspects of your case, having been initially trained in medicine. They may be better able to interpret and decipher the medical records and challenge the experts’ medical opinions.
- Meeting: It is probably a good idea to meet with your proposed solicitor. The chemistry between solicitor and client, especially when a case may take many years and be emotionally charged, is potentially extremely important. You may want an empathetic solicitor, who understands your plight and who treats and communicates with you as an individual human being; or one who has technical excellence, suitable for your very medically complex case; or one who is realistic and pragmatic, in a changing and challenging legal landscape; or one who, when it matters, has a backbone of steel. Or, if I were you, all of the above! Meeting your potential solicitor will give you a good understanding of whether the chemistry is right. And if you have difficulty travelling you should expect them to visit you at your home.
- Funding: The commercial reality is that solicitors need to make a living and get paid for their expertise, but there is stiff competition in this era of minimal public funding and new conditional fee agreements in which clients now are expected to have to pay from their damages. Ensure that your solicitor is offering you a reasonable “package” for what you are getting in return, although be aware that cheapest is not necessarily best, and decide whether you would prefer to forego some of your compensation to optimise your chances of actually winning damages in the first place. Consider firms that have delegated after the event insurance (ATEI) with a specific insurer, which is only likely if the firm is experienced in clinical negligence and reputable.
- Who will do the work?: Be careful of being lulled by a firm into thinking that the experienced solicitor or partner whom you met and liked, and to whom you have just given your case, is the one who is actually running your file rather than just being a “supervisor”. Some firms and solicitors will ensure that much of the work, even complex substantive work, is done by very junior or trainee solicitors, paralegals or the equivalent, in an effort to keep costs down. This is not always in the best interests of your case (depending of course on how involved the supervisor really is). This is something to be careful about in relation to before the event insurance company panel firms: many insurance companies will in fact happily allow you to instruct non-panel solicitors, usually on a CFA, so do not be put off by asking for your non-panel solicitor of choice.
- Independent verification: There are many sources of information that may help you choose your firm and solicitor. A personal recommendation can be hugely important. The legal directories, Chambers and Legal 500, may be helpful. The AvMA and The Law Society referral panels reflect a certain level of technical expertise and experience. Solicitors with a significant media profile may be eye-catching, but may not necessarily be the best or even most available “on the ground”. Likewise, just because a firm advertises does not make it either the best or the most suitable for your case.
- Choosing the right solicitor for your case is not easy but hopefully the above list, albeit not exhaustive, will help. Most importantly, do not be shy to question the credentials of your shortlisted solicitor(s) before making your choice: it is a competitive market and it is your case.