Self-help guide
You should always consider seeking legal advice from a clinical negligence solicitor before acting for yourself. If the solicitor advises that the claim has poor or limited chances of success, you need to carefully consider any decision to write a letter of claim yourself in light of the time this will take, and it is not in anyone’s interest to take action which does not have a reasonable chance of getting a positive outcome.
You can search for a specialist clinical negligence solicitor at: www.avma.org.uk/find-a-solicitor.
There can be circumstances where however a solicitor advises you that your claim has merits (i.e. there is a reasonable chance that you could establish breach of duty of care (negligence) and that this has caused harm (causation) but there may be a technical reason why they cannot assist such as the costs of investigating and bringing a claim to court are more than the amount of compensation you could recover.
Sometimes people also consider that they do not want to have a solicitor to handle a claim such as they wish to avoid deductions which the solicitor can take from your compensation such as for the success fee or for their legal costs which cannot be recovered from the defendant, if you are successful in a claim. With the success fee, solicitors are allowed to take a success fee from your damages which is capped at 25% of the damages you will receive for your injury and past losses (special damages). They also have to deduct a proportion of the insurance premium which is taken out to pay the other party’s legal fees if you have an order for costs made against you.
Solicitors have to give clients the best possible information regarding costs, and update this as the case proceeds. You should therefore ask any questions you want to ask to ensure that you understand your liaibility to pay any costs and how and when this might arise. Your solicitor should always confirm the funding arrangements for your case in writing, at the beginning of the case and if there are any changes.
In some cases, for example, if you have an investigation report which is critical of the standard of care you or your loved one were given, or a complaints response which also acknowledges that the care was not of the standard it should have been, you may wish to negotiate with solicitors whether they can offer a lower success fee for your case. Cost risks As a litigant in person, you run the same risks of having to pay the other sides’ legal costs, as if you were represented, you should not rely on the courts being lenient with you because you do not have the benefit of representation. If you do have to pay the other side’s costs, perhaps because an adverse costs order has been made against you, those costs can be considerable, and you would be responsible for paying these. This risk only materializes after a claim has been issued and served in court and you cannot be liable to the defendant costs before this.
1. I am thinking of writing a Letter of Claim myself or for my loved one-what are the possible pros and cons of this?
Although there are some advantages of writing a letter of claim yourself (such as avoiding any deductions from your damages for legal costs), there are also disadvantages: –
- It is not an independent process the defendant health provider and their solicitors are acting for the other side primarily and their interest is to try and get rid of the case as quickly and economically as possible
- You will not be allowed to choose the experts they instruct and usually reports from experts will not be shared with you although they will summarise what the expert says. Expert reports may be disclosed if the case goes to court
- They may not offer you the full value of the claim as it is in their interest to try and settle the case as economically as possible-for instance they may not be prepared to investigate any mental harm you have suffered.
- If they offer you a settlement of your case – this will usually be in full and final settlement of the claim, and you would not be able to go back to get further compensation in the future
- Even if they offer you a settlement and you do not have to pay any deductions from this, a solicitor acting on your behalf may be able to recover more than this and this difference could be more than any deductions which are made.
- They can deny that there was a breach of duty of care or that this caused harm and in this case you would find it difficult to then secure representation to look into a claim as a solicitor would not be able to say that the case had a 51% chance of success which is the usual threshold for claims to be taken on.
If having carefully considered this information – you decide to write a letter of claim – you can also read information on making a direct approach to the defendants and also a template letter at:-
https://resolution.nhs.uk/services/claims-management/advice-for-claimants/https://resolution.nhs.uk/wp-content/uploads/2018/09/Letter-of-claim-template.doc
2. Who do I send the letter to?
Avma cannot tell you who the correct defendant is. You need to identify the correct parties to send the letter of claim to:-
- Hospital doctors or other health professionals – the correct defendant would be the trust, and the letter of claim needs to be addressed to the Chief Executive
- GPs and dentists should usually be sued individually but not always.
- You will need to send a separate letter to each defendant
- You can ask in the letter if they are the correct defendant and if they are aware of other potential defendants.
Keep a copy of the letter and ask the Post Office for proof of postage – you might need to show when you sent your letter.
3. What to include in the letter of claim
The Letter of Claim is intended to provide adequate information to the potential defendant to understand in general terms the nature of the case they must meet. It does not therefore need to be long, and you should avoid personal commentary on aspects of the care or how the complaint or other investigations have been handled as this is not strictly relevant as the two processes are separate. Be clear what you think went wrong and what happened as a result of this and what you want them to do put matters right. You do not have to provide a detailed schedule of the compensation you are seeking but should identify the main heads of damages and if you are making an offer to settle what this offer is. If you subsequently embark on litigation, then the allegations you make in the formal court pleadings can vary from those set out in the Letter of Claim and they may be informed by and adjusted in reaction to the defendant’s response to the Letter. Do not, however, hold back any information which is relevant at the time you write the letter.
This letter should contain—
1. A clear summary of the facts on which the claim is based, including the alleged adverse outcome, and the main allegations of negligence; 2. A description of the claimant’s injuries, and present condition and prognosis; 3. An outline of the financial loss incurred by the claimant, with an indication of the heads of damage to be claimed and the scale of the loss, unless this is impracticable
The Letter of Claim should refer to any relevant documents, including health records, and if possible, enclose copies of any of those which will not already be in the potential defendant’s possession, e.g. any relevant general practitioner records if the claimant’s claim is against a hospital. Sufficient information must be given to enable the defendant to focus investigations and to put an initial valuation on the claim.
Some people find the section on wording of the allegations of negligence difficult. This case illustration may help you to see what the wording should be:-
BOX CASE illustration
Mr. P attended his local A & E department complaining of lower abdominal pain which was worse when he coughed or stood up and that he was having some nausea and constipation. His pulse and temperature were normal. He was seen by a doctor who did not perform a physical examination but advised that he thought the patient had food poisoning. Mr. P was sent home with no additional advice. His symptoms got worse over the next 48 hours with the pain moving to the right side of his lower abdomen. He began to vomit and had diarrhea, He reattended hospital and appendicitis was suspected on the basis of the clinical symptoms and as blood tests showed raised white cell count and raised inflammatory markers. A laparotomy was carried out and the appendix had perforated. Mr P had an extended hospital stay and extended recovery period. He still complains of occasional pain and changes in bowel habits.
4. Allegations of Negligence
Breach of Duty
The Defendant, its servants or agents were negligent in the standard of care afforded to the claimant.
Specifically:-
There was a failure to properly examine the claimant such as to palpate the stomach to see if there was localized tenderness, guarding and rebound tenderness
There was a failure to carry out any investigations such a blood tests or any radiological imagery
There was insufficient safety netting advice given such as to seek additional medical attention if symptoms did not improve or got worse
Causation
It is the Claimant’s case that:-
- Had proper physical examination and appropriate investigations been carried out then this would have resulted in recognition that appendicitis was a likely cause of the claimant’s symptoms
- If proper safety netting advice had been given Mr P would likely to have reattended hospital earlier.
- If appendicitis had been suspected surgery would have been offered and performed within 24 hours of presentation and that it is more likely than not that this would have been before the appendix perforated and it is likely that he would have recovered more quickly from surgery which have been a simper operation than the one he had, and not required such an extensive hospital stay and prolonged recovery period.
- Had such surgery taken place earlier, this would have avoided the continuing pain and also discomfort.
The Letter of Response
The letter of claim should be acknowledged within 14 days, and they should tell you who is dealing with it such as a solicitor instructed by the NHS. The defendant(s) will then have four months to investigate and respond. They will ask you for your permission to get your medical records and also will ask for your National Insurance Number as they have to notify a government body known as CRU that there is a potential claim. Requesting this information does not mean that they are going to admit breach of duty of care/causation and offer compensation. The defendant solicitors will then send you what is known as a Letter of response in which the defendant should—
1. If the claim is admitted, say so in clear terms; 2. If only part of the claim is admitted, make clear which issues of breach of duty and/or causation are admitted and which are denied and why; 3. State whether it is intended that any admissions will be binding; 4. If the claim is denied, include specific comments on the allegations of negligence and, if a synopsis or chronology of relevant events has been provided and is disputed, the defendant’s version of those events; 5. If supportive expert evidence has been obtained, identify which disciplines of expert evidence have been relied upon and whether they relate to breach of duty and/or causation; 6. Provide copies of any additional documents relied upon, e.g. an internal protocol;
5. I have the Letter of Response what should I do?
Seek additional legal advice from a solicitor particularly if you are offered a settlement as it is important to check that the offer is appropriate as if you accept this, this will be full and final settlement of the claim and you would not be able to go back and request further compensation such as if your condition gets worse. If you wish to make a counter offer such as to ask for a higher level of compensation, then we would also advise you to seek legal advice
Writing back
The Judicial Handbook for Litigants in Person says that once you have a letter of response:-
‘The Judge will expect the Claimant to write a further letter explaining why he does not accept the response, if that is the case’
If there is any instance of factual information which you believe is wrong, then you can ask them to consider if they need to change the response. It is not enough simply to repeat the allegations made in your letter of claim.
The other option is to issue a claim. This should not be done before the four month period has expired.
Our leaflet for litigants in person has information on starting a claim and sources of support and help for litigants in person:-
https://www.avma.org.uk/wp-content/uploads/Litigants-in-Person.pdf