Personal injury and clinical negligence

In a nutshell

Personal injury and clinical negligence lawyers resolve claims brought by people who have been injured, either as a result of an accident or through flawed medical treatment. The claimant lawyer usually acts for one individual, but sometimes a claim may be brought by a group of people – this is a class action or multiparty claim. The defendant lawyer represents the party alleged to be responsible for the illness or injury. In most PI cases the claim against the defendant will be taken over by the defendant’s insurance company, which will then be the solicitor’s client. Local authorities are common defendants in relation to slips and trips, while employers usually end up on the hook for accidents in the workplace. In a majority of clinical negligence cases the defendant will be the NHS, although private medical practitioners and healthcare organisations are also sued.

Claimant solicitors  

• Determine the veracity of their client’s claim and establish what they have suffered, including income lost and expenses incurred.
• Examine medical records and piece together all the facts. Commission further medical reports.
• Issue court proceedings if the defendant doesn’t make an acceptable offer of compensation.

Defendant solicitors  

• Try and avoid liability for their client or resolve a claim for as little as possible.
• Put all aspects of the case to the test. Perhaps the victim of a road traffic accident (RTA) wasn’t wearing a seatbelt; perhaps the claimant has been malingering.

Both  

• Manage the progress of the case over a period of months, even years, following an established set of procedural rules.
• Attempt to settle the claim before trial or, if a case goes to trial, brief a barrister and shepherd the client through the proceedings.

The realities of the job

• The work is driven by the procedural rules and timetable of the court.
• There is a mountain of paperwork, including witness statements and bundles of evidence.
• You’ll spend a lot of time considering medical issues and records. Being squeamish is a no-no.
• Claimant lawyers have close contact with large numbers of clients and need good people skills.
• Defendant lawyers need to build long-term relationships with insurance companies. Clin neg defendant lawyers need to be able to communicate well with medical professionals and health sector managers.
• PI lawyers have large caseloads, especially when dealing with lower-value claims.
• There is some scope for advocacy, although barristers are used for high-stakes or complicated hearings and trials. Solicitors appear at preliminary hearings and case management conferences.

Current issues

• In 2011 the government announced its intention to implement most of the Jackson Report's proposals aimed at reducing the cost of civil litigation. PI and clin neg are two areas which will likely be most affected by the changes, which include no longer allowing successful claimants to recover success fees from the losing party. Instead, they will have to pay their lawyers' success fees out of the damages they receive, which will likely mean they will be more interested in controlling costs This will obviously have a profound effect on 'no win, no fee' arrangements. After The Event insurance will also be abolished, and more of the report's recommendations may be introduced in the near future. Read more about the report in the feature on clinical negligence below.
• Claims management companies remain a controversial issue. Some practitioners see their involvement as a way to counter-act the potential challenges from the entry of big high street names into the legal market when the Legal Services Act takes effect. The Jackson Report recommended banning the paying of referral fees to brokers and claims management companies, and there was some surprise that the issue was not addressed along with many of Jackson's suggestions in the 2011 Justice Bill.
• It remains to be seen what the impact of the imminent implementation of the Legal Services Act will be for the personal injury market. The opening up of the legal market to alternative business structures has the potential to greatly impact upon this practice area, as individual clients on the claimant side could be an ideal target group for the kind of service which might be offered by big high street names entering the legal market. Following the change of government it is possible that certain aspects of the Act may be altered, but currently it seems likely that at least the central ideas will remain.
• There has been a rise in the number of clinical negligence claims being brought. This may be attributed to the recession, with people in need of money more likely to pursue claims that they would otherwise not. Alternatively it may be due to the greater availability of funding through CFAs, as well as greater public awareness of the feasibility of making a claim.
• Some concerns have been expressed about the quality of the defence available to clinicians. The NHS Litigation Authority continues to reduce the number of firms on its panel, and increasingly demands that those that remain adhere to very strict rules when responding to claims.
• The NHS Redress Act 2006, gives the power to introduce a scheme allowing lower-value claims to be handled by the NHS without going to court. Obviously this would cut away some of the lawyers’ bread-and-butter work, and the proposal incites an important debate about health sector regulation in general.
• 80% of UK personal injury claims commenced each year relate to road traffic incidents where damages are less than £10k. In April 2010 a new protocol was implemented. It streamlines the claims procedure in such cases by resolving liability and determining damages through an online portal. Its efficacy may significantly modify civil procedure in the future.

Read our True Pictures on:

- These firms for personal injury

- These firms for clinical negligence

- These firms for the related area of healthcare law