How a solicitors’ failure to obtain sufficient medical evidence could result in under settlement of your personal injury claim
Personal injury represents a sizeable majority of civil law cases. In the second quarter of 2020, claims for personal injury comprised 84% of all money claims.
Naturally, because of the vast number of personal injury claims that are processed by fee earners of all levels, personal injury claims are also frequently found to be the subject of subsequent professional negligence claims. This is because there are a wide array of things which can be easily missed by the legal adviser who has responsibility of the file. Examples of this include;
- failing to take instructions on all injuries suffered;
- failing to contact relevant witnesses and collect vital evidence such as CCTV evidence;
- failing to obtain full and complete medical evidence;
- failing to consider all potential claims for special damages, such as a Smith v Manchester award;
- failing to comply with Court deadlines;
- failing to issue the claim in time of the statutory limitation period.
The most fundament part of a personal injury claim is the medical evidence. The legal adviser with responsibility of your personal injury matter has a duty to collect all essential evidence and to do so on time. Failure to do so may result in negligence as stated by the decision in the case of Browning v Brachers (A Firm).
Specters has dealt with a number of claims where the legal adviser has not obtained sufficient medical evidence before determination of the case. Determination in this respect may mean settlement of the claim, when the claim has been struck out or dismissed by the Court, or when the Court has not permitted the provision of further medical evidence. In the latter scenario, this may occur when the claim is within litigation and the legal adviser has not obtained updated GP or hospital records in time of a Court deadline.
In most cases the medical expert reporting on the claim will make recommendations for the Claimant to be seen by specialist doctor, if they consider it necessary. The legal adviser should be diligent in carrying out the expert’s recommendations whilst also taking instructions from their client as to the symptoms suffered.
For example, even in cases where the expert has not recommended for the claimant to see a psychologist, if their client has expressed they are suffering from symptoms of psychiatric disorder, the legal advisor should review the claimant’s medical records and ask the reporting expert whether they should be referred for a psychologist examination.
Failure to obtain full and complete medical evidence from medical experts of the necessary specialisms could result in the claimant receiving deficient compensation and losing out on necessary medical treatment to aid their recovery.
A professional negligence claim will seek to recover the loss compensation and medical treatment from the claimant’s former solicitor by a loss of chance claim. Within this claim, the claimant will need to prove that you had a real and substantial prospect of succeeding in the claim for the additional compensation and/or treatment, however the medical evidence will be used as evidence for this.
At Specters, we have a number of senior and associate level solicitors with a plethora of experience in both personal injury and professional negligence claims which means that they are able to quickly assess your personal injury claim for undersettlement.
