For the professional negligence lawyer, this aspect of personal injury litigation will seem happily familiar. Nevertheless, some dangers and oddities lurk in the shadows and it is worthwhile knowing where they hide.
In many cases, the claimant’s medical records will have been obtained and disclosed pre-action1. Hence, before litigation starts, the parties usually have a fair idea of the claimant’s medical history, the records relevant to breach, and some insight into how the injury has affected the claimant’s life. By contrast, documents relating to loss tend to be disclosed later (and may be serially updated as litigation drags on over several years).
The familiar rules for formal disclosure apply, as do the familiar rules for the exchange of witness evidence.
In many clinical negligence and complex personal injury cases, the volume of disclosure generated and the irrelevance of large swathes of it is a source of frequent irritation. It is not unusual for a claimant with a complex medical history (which may or may not have anything to do with the incident in question) to have several thousands of pages of medical records that are poorly photocopied, handwritten, full of abbreviations, out of any sensible order and provided by multiple treating hospitals or GP practices.
Often, there are only a handful of pages that are really important on the liability and primary causation issues. Failure to ensure that experts have reviewed and commented upon the key records is a sure way to attract criticism, waste costs and generate claims.
A related problem is the difficulty of obtaining full disclosure. Where patients have a long medical history, have moved, been seen by different specialists and have multiple comorbidities being treated in different places, trying to obtain a full copy of the medical notes is, at best, tedious.
Equally important is ensuring that complete records are provided. It is common for at least some records to be held electronically and not disclosed unless specifically asked for.2
Whilst a claimant will be expected to explain how he or she considers that the accident occurred, or to say what they can remember of the matters giving rise to the clinical negligence claim, for many claimants much of their witness statement will deal with loss and damage. By contrast, a Defendant will rarely adduce any witness or documentary evidence in relation to loss and damage. Any failure in the claimant’s expert evidence or disclosed documents to prove the extent of the damage (e.g. medical records) or the amount of loss (e.g. financial records) suffered is likely to lead to the claimant recovering less than they should and claims against their solicitor.
When a Defendant senses fraud, surveillance evidence will often be obtained. It will usually be disclosed after witness statements and expert reports have been exchanged (such that the claimant has nailed his colours to the mast)3. It is surprising how rarely surveillance reveals anything of interest. But in a few rare cases the video footage will prove the claimant is lying about her injuries. The consequences for a dishonest claimant can be severe: the right to costs protection can be lost4 and the whole claim forfeit (even if part of the claim is genuine)5. Unsurprisingly, it is rare for a solicitor to be sued by his lying client for not protecting him for the product of his own lies! That said, the prospect of such an adverse result can require urgent advice and the acceptance of any low offer that a defendant has charitably left open.
Wishful thinking and Counterfactuals
In any consent case, advice will always need to be given about the difficulty of proving the key proposition: that if given different advice the patient would have chosen different medical treatment. Witness statements will always (should always!) make that claim. Yet only relatively rarely are the reasons to support that contention sufficiently cogent for the claimant’s case to succeed.6
Hailsham Chambers specialises in clinical and professional negligence with many members having considerable experience of both areas and frequently acting in claims for failed personal injury or clinical negligence litigation.
