When do you need evidence?

Once the source of funding has been agreed, your solicitor will request copies of all the medical notes and records from the hospital and your GP.

These are both obstetric (to do with the mother) and paediatric (to do with the child). Your solicitor will check to ensure that the records are complete and in proper order before instructing one or more independent expert witness to prepare reports. Records remain confidential between these people.

Obtaining expert reports

In a birth injury case, the independent experts will usually include an obstetrician, a paediatrician and another experts such as a midwife, paediatric neurologist or neuro-radiologist. The correct identification of appropriate experts by the solicitor at an early stage is essential.

If the experts report that the medical treatment given was in accordance with normal practice and was to an acceptable standard then there can be no claim. If it is felt that the medical treatment was sub-standard and therefore there was a 'breach of duty' then matters can progress further.

Your solicitor should have the expertise and understanding to meet with you and explain the reports obtained. It may be appropriate to also include a barrister and the experts who have reported in that meeting. They will let you know whether they think you have a case and answer any of your questions. If you are unhappy with the initial report you can seek a second opinion from an expert of the same specialism. However, you will need to discuss funding options with your solicitor.

Letter of Claim

If the reports are supportive of a claim, your solicitor will write a letter to the defendant (the person or body against whom the claim is to be initiated) setting out full details of your claim. This will include details of any likely allegations and the approximate compensation sought so as to identify the nature and extent of the claim. The defendant will have 4 months in which to respond to this letter. The response may give an early indication of the likely outcome of legal proceedings and possibly an early admission of liability.

If the defendant admits liability early on, it will avoid the need for a trial on that issue. Many cases are settled out of court between the parties, even when the court proceedings have begun.

A split trial

Sometimes the trial will be split. Firstly, liability for breach of duty and causation will be considered. If liability is admitted or proved, the level of compensation will be considered at a later stage. The reasons for this may be:

  • It is inappropriate to decide the total amount of compensation if the case relates to a child who is still developing and future needs and prognosis cannot be accurately assessed.
  • Despite the evidence, the defendants will not voluntarily admit liability and it is seen as a waste of legal costs to investigate the level of compensation before the right to them is ascertained.
  • If a split trial on liability is successful an interim payment on account of compensation can be awarded to meet a child’s needs whilst the full value of the claim is investigated.

One advantage of a split trial is that it gives certainty as to the eventual outcome.

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