What happens when a clinical negligence claim becomes a litigated matter?

After the claimant has issued proceedings at court, they are required to prepare a document setting out the formal allegations that the claimant will be pursuing going forward. This document is known as the ‘particulars of claim’. We will have 14 days following receipt of the particulars of claim to prepare a defence on your behalf, or 28 days if we serve a document known as an “acknowledgment of service”.

If several defendants are being pursued for the same injury (such as a GP or hospital as well), one particulars of claim will be used for all defendants.

The particulars of claim must include:

1. The facts relied on
2. The allegations of negligence; and
3. The loss(es) that compensation is being sought for (this is often included in a separate document known as a schedule of loss)

Defence

Our defence is our formal response to the claimant’s particulars of claim. This is prepared by a barrister who has reviewed all of the information in the claim so far. They will usually prepare an advice at the same time which considers the prospects of successfully defending the claim to trial and their assessment of quantum (the value of the claim).

The defence has two objectives. It must:

1. Respond to the claim by admitting, denying or requiring proof of each allegation in the particulars of claim; and
2. State the defendant's case by setting out the facts and matters on which the defendant relies to defeat or limit the claim, including stating any alternative version of events and/or any positive or substantive defences

The defence will be sent to you for your prior review and comment. It will also be sent to our experts, clinical advisor(s) and insurer.

When we have finalised the defence we will send it to you for you to sign the statement of truth at the bottom.

We are required as a matter of professional conduct to advise you that the penalties for signing a statement of truth without an honest belief in the truth of the facts being verified are potentially severe. A person who makes a false statement in litigation in an attempt to interfere with the course of justice will be in contempt of court, which is punishable by a prison sentence of up to two years.

Accordingly do:

• Check the defence very carefully
• Remember it is your defence and therefore please do not feel constrained by the terms of the draft
• Feel free to make any alterations to your defence that you consider necessary

The CCMC is a hearing before the court after the defendants’ defences have been filed at the court and served on the other parties. You do not need to attend this hearing. It is an administrative step in which the court sets a timetable (“directions”) to trial which the parties must adhere to and places limits on the amount each party can spend at each stage of the claim (“costs budgeting”).

Often, the directions and costs budgets can be agreed between the parties prior to the CCMC. When this happens, the parties will ask the Court to ‘vacate’ the hearing altogether and then the court need only approve the agreed directions and budget.

Your AOP solicitor, barrister and/or costs lawyers will attend the CCMC on your behalf if agreement cannot be achieved in advance, to argue why the dates that we recommend for the directions and/or, our budget is appropriate and, if the claimant’s budget is considered too high, why this should be reduced.

This is usually the first step in the timetable to trial. Each party has to fill out a form (“list of documents”) which sets out all of the documents that they hold in relation to the claim and the parties are under a duty to carry out a reasonable search for further documents.

Each party must disclose the documents:

• Which they intend to rely on
• Which can adversely affect their own case or another party’s case
• Which support another party’s case
• If there is a practice direction ordering that it be disclosed

The witness statement is a critical document in the claim which your input is needed for. This document is designed to reflect the evidence that you would give at trial and it should therefore be in your own words and based on your recollection (if you do recall the examination) and/or your contemporaneous record(s) and usual practice. It is not necessary to remember the exact examination, but if you do recall certain details, you should include this in the statement.

Based on the statement you provided at the letter of claim/notification stage, your records, and discussions you have had with the legal team, we will prepare a skeleton of the witness statement on your behalf and send this to you. We will mark areas which we specifically want you to fill in and encourage you to add any information that you wish to throughout. After you have added to the statement, it will also be sent to our clinical advisors, counsel and insurer for their review and amendment.

When we have finalised the witness statement we will send it to you for you to sign the statement of truth at the bottom.

We are required as a matter of professional conduct to advise you that the penalties for signing a statement of truth without an honest belief in the truth of the facts being verified are potentially severe. A person who makes a false statement in litigation in an attempt to interfere with the course of justice will be in contempt of court, which is punishable by a prison sentence of up to two years.

Accordingly do:

• Check the statement very carefully
• Remember it is your statement and therefore please do not feel constrained by the terms of this draft
• Be mindful that you may only give evidence as to matters that you directly saw or heard
• If you mention evidence that has come from another source (another person, medical records, etc) then that source must be identified
• Feel free to make any alterations to your statement that you consider necessary

Clinical negligence cases are expert led. This means that the opinion of experts is critical in determining whether or not you are liable for an alleged injury.

In most cases, we will instruct an expert optometrist and expert ophthalmologist to comment on your case. The expert optometrist will give their opinion on whether or not there was a breach of duty and the expert ophthalmologist will give their opinion on whether or not the breach of duty caused the claimant’s injury.

In more complicated cases, such as ones involving tumours, more experts such as neurosurgeons and neurologists will be required to comment on liability.

When determining their opinion on breach of duty, the experts must consider two legal tests known as the Bolam and Bolitho tests, both from clinical negligence cases. The Bolam test states that if an optometrist has acted in accordance with a practice accepted as proper by a “responsible body” of other optometrists, they cannot be guilty of medical negligence. The Bolitho test qualifies the Bolam test, stating that the accepted practice must be capable of withstanding logical analysis. In short, your actions will be determined by whether or not you did or failed to do something that no other reasonably competent optometrist would have done in the same circumstances.

After the witness statements have been exchanged in a matter, the next step is that each party’s expert reports must be filed at the court and served on the other parties. Each party will review each other’s reports and the experts will be ordered to attend a meeting with the other experts of their discipline (for example all optometrist experts together) to identify and discuss the expert issues in the proceedings and, if possible, reach an agreed opinion or narrow the issues. After this, they will write an experts’ joint statement.

The joint statement sets out the issues on which the experts agree or disagree and why. It must cover:

• The extent of the agreement between them
• The points of, and short reasons for, any disagreement
• The action, if any, which may be taken to resolve any outstanding points of disagreement
• Any further material issues not previously raised and the extent to which these issues are agreed

Despite the fact that most cases settle without trial, and many disputes settle at an early stage, even pre-action, not all do, and, in any event, looking ahead to the possibility of trial remains an important aspect of running any case.

The trial is the stage where a judge hears all of the evidence and makes a judgment on whether you are liable for the claimant’s injury.

Each party will be represented by a barrister (“counsel”) at the trial, who will do the majority of the talking.

The claimant, you and the experts will all give evidence, our counsel will cross examine the claimant and their experts and you and our experts will be cross examined by the claimant’s counsel.

The usual agenda for a trial is:

• Oral opening submissions – Claimant
• Oral opening submissions – Defendant
• Judge's reading time (for example, a day). Some judges prefer to read in before hearing opening submissions
• Evidence of claimant's witnesses of fact
• Evidence of defendant's witnesses of fact (this will be you)
• Evidence of claimant's expert witnesses
• Evidence of defendant's expert witnesses
• Oral closing submissions – Defendant
• Oral closing submissions – Claimant

It is important to note that trials are open to the public and may have the press in attendance.