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The Litigation Series – Week 2 – Investigating A Clinical Negligence Claim: Starting To Gather Evidence

The principle to have in mind when investigating a clinical negligence claim is that it is for the claimant to prove their case. Therefore gathering as much evidence as possible to support your claim is crucial.

Gathering evidence

As my colleague, Ailsa, pointed out in last week’s blog, at the initial meeting with your solicitor, they will want to take information for a witness statement. Of course, when investigating a clinical negligence claim, your evidence about what has happened to you, and the impact it is having on your and possibly your family’s life, is fundamental. It also helps to get your version of events down on paper as early as possible, given life can be busy and it is easy for our memories and recollections to become a bit cloudy. If you happened to keep a diary or any kind of contemporaneous record of the events giving rise to your claim, this could be very useful evidence and so do share it with your solicitor. I have worked with a client who underwent negligent knee surgery. She kept meticulous diaries out of habit, and these proved very useful when proving how the pain was impacting on her ability to play the sport that she loved.

Requesting medical records

We then need to set about obtaining your medical records, and not just those that relate to the treatment that has allegedly caused you injury. As part of our investigation, we obtain a complete set of your medical records including from your GP, hospital Trusts and any private practitioners from whom you might have received treatment. This is important because your medical history provides relevant background which may be necessary to prove your claim. The defendant will also be entitled to see your full medical history so it is better to be prepared. Finally, your records may also be relevant to trying to assess your level of compensation.

For example, I have worked on a case where a client was experiencing a compartment syndrome, which is an extremely painful condition. As she tried to seek help, she contacted and attended 2 different A&E departments under two separate hospital Trusts, her GP and the NHS 111 helpline. We needed to obtain the medical records held by each of these bodies in order to build up a picture of exactly how the client’s symptoms were developing, to work out which, if any of the treatment providers, had been negligent.

We also needed a complete copy set of the medical records because after the compartment syndrome was diagnosed and treated, it left some symptoms behind, there was not a full recovery. These later records were essential to prove to the opponent/s the level of damages the client was entitled to recover, as it provides a record of the pain levels as well as a clear record of when the client had paid for private treatment e.g. from osteopathy. We were able to recover these costs.

Medical records may also contain information about internal hospital investigations or reviews into the treatment you have received. This could be part of a complaint you have made via the internal Trust Patient Advice and Liaison Service (‘PALS’). Alternatively it may be a ‘Serious Untoward Incident’ or ‘Root Cause Analysis’ report, which the hospital commissioned to investigate and learn from the treatment you received. In all of these cases, as part of these processes there will usually be internal correspondence, documents and even witness statements prepared by the clinicians involved in your treatment, commenting on their role in your care. These all form a part of your medical records, and can contain important information to our investigation, so we will always ensure that we have obtained full records.

Once we have the medical records sorted and in good order, we go through these with you to ensure that everything that should be covered in your witness statement, has been covered. For example, the medical records might prompt you to recall an appointment you had forgotten attending. Or there might be entries in your records which do not reflect how you remember events unfolding. Your witness statement is essentially your voice, to put across your side of the story, so it is a really important part of investigating your claim.

Investigating a clinical negligence claim can sometimes involve obtaining records relating to Inquests, in the very sad circumstances where these have had to take place. The role of independent expert evidence is also a crucial part of the investigation. If you would like more information on these, check out our upcoming blogs which will be covering these topics in more detail.

If you are concerned you have experienced medical negligence you may be entitled to a compensation. For a free initial consultation with one of our medical negligence team please call 0330 822 3451 or request a call back online.