Clinical negligence

Clinical negligence

Emma Beeson

Penningtons Manches LLP

University: University of Warwick
Degree: Law
 

Clinical negligence lawyers advise in relation to instances of injury or death arising from incorrect or inadequate medical treatment or diagnosis. Firms typically represent either claimants (usually one at a time, occasionally groups of similar claimants) or defendants (eg, the NHS, private medical practitioners and healthcare providers). This area of practice can at times be heart-wrenchingly sad; for example, cases relating to life-long suffering caused by birth injuries resulting in cerebral palsy. It can bring the practitioner intense satisfaction when a client is compensated sufficiently to secure the care that they will need to make their life and that of their family more manageable. Healthcare providers additionally require a broad spectrum of advice on everything from best practice in patient care to life-or-death decisions regarding individuals receiving critical care.


Emma Beeson’s interest in law was sparked at school when she got involved with a mock trial competition: "We got to go into a court and act out a trial, competing against other schools. It really inspired me to look into law as a possible career." This early exposure to advocacy sparked an initial desire to become a barrister, but she thought twice about it having started her degree and looking into the reality: "First, the fact that funding wasn’t widely available for pupillage, whereas it was for training contracts, made pupillage much less attractive. Second, the fact of being self-employed was a real deterrent, especially as a young woman thinking about the implications further down the line. Third, I was influenced by talk that the Bar may be a dying profession, with the prospect of the two branches merging. Ultimately, I felt that I would have the best of both worlds by being a solicitor - ie, client contact from the beginning and the chance to do some advocacy if I went into litigation."

Determined to access "high-end, City work" but not in London, Emma resisted the push from careers advisers to only apply to magic circle firms and looked instead at regional firms that could offer great work: "Penningtons really stood out for me! I went on to train here, doing all four seats in the Basingstoke office, which is where I still am."

Now fully qualified and part of the firm’s clinical negligence team, Emma describes the way a typical case might develop: "A client will come to us initially with a query regarding their potential claim and we will try to get an understanding of what that person has been through. It has often been a very distressing experience, so managing the client appropriately is important. The next stage is to put funding in place, which can be quite technical but, after this has been done, it is necessary to obtain the client’s medical records so these can be reviewed and assessed. Although I’m not medically trained, I can build up a chronology of what has happened and I can assess whether the records accord with what the client says. There’s an element of investigation, including taking witness statements from the client and their family members. We then have to instruct an appropriate medical expert, for them to determine whether there has been negligence. Once I have received the expert’s report, it is a question of assessing whether, on the strength of the evidence we have, we can prove the legal tests we must satisfy in any clinical negligence claim."

Emma continues: "Steps are usually taken in accordance with the Pre-Action Protocol for Clinical Disputes to try and settle matters without the need to issue court proceedings. However, if this cannot be done, then a decision will need to be made as to whether it is appropriate and proportionate to litigate the claim."

Assuming that the decision is made to litigate, the next steps are likely to involve "drafting letters to the defendant, issuing court proceedings, reviewing responses, instructing counsel, drafting court documents, negotiating with the defendant over the phone or in a meeting and, finally, attending court".

Emma has a varied caseload being involved in birth injury claims, “which tend to be high-value cases where I am usually assisting a more senior colleague” to others which make up the bulk of her workload, such as “oncology, spinal surgery, vascular surgery, gynaecology, urogynaecology, general surgery and surgical error cases”.

A career highlight involved restoring a client’s faith in the legal system. "My client had been told by his previous solicitor that he didn’t have a case, but he felt that important points had been missed and was still concerned about the medical treatment he had received" recalls Emma. "I took the case on and investigated things further, obtaining two independent expert reports which supported our case and we triumphed. The client had lost all hope and he finally felt vindicated. It was good to see that he could finally get the care that he needed after a number of years of worrying about what had happened to him."

As you’d imagine in an area of law that often deals with very traumatic and personal circumstances, one of the key skills required by clinical negligence lawyers is empathy, as Emma explains: "Your client has to be able to trust and confide in you; we are often talking about very sensitive subjects. But you also have to have other skills, including determining whether it is proportionate to pursue a case. You have to be very organised and good at time management. There are set time frames for carrying out each of the steps required in a claim and you are also often dealing with a huge team, including experts and barristers, and they have to be attuned to the timetable as well."

Another skill is knowing how to handle negotiation situations: "Different people have different styles, and there’s no right or wrong way, but you don’t always have to be totally hardnosed. I know plenty of very clever lawyers who take a softly, softly approach, which can be just as effective. Sometimes it’s about thinking outside of the box and considering what compromises need to be made."

With a lot of legislative change affecting litigation over the last few years – including the Jackson Reforms, which had their greatest impact on funding and costs budgeting – practitioners have much to absorb. "The effects of the Jackson Reforms are still trickling down," explains Emma. "There is also a huge backlog in the courts at the moment due to the changes to cost budgeting; previously, it used to be the case that a Case Management Conference (CMC) would be listed within a few months. However, now it can take up to nine months to obtain a date for a CMC. Another concern is the recent discussion over the potential increase in court fees. There is a proposal that the court fee for issuing proceedings in some cases will be increased by 600%. This will of course have a huge impact on whether you can advise a client to proceed or not on proportionality grounds."

Still on the funding issues that are so much a feature of modern-day litigation, Emma reflects on the impact of the recent changes to the legal aid system: "Although I personally do not do a great deal of legal aid work, the firm as a whole does and there have certainly been cases that would previously have been covered that now aren’t. There are other options, such as conditional fee agreements and legal expenses insurance, but that’s another realm of complication, especially when you’re dealing with injuries to children. There is much discussion as to whether it is right for a success fee to be taken from damages awarded to a child."

If this sort of rewarding work is an area that might be of interest, Emma suggests several ways to learn more about it and gain transferable experience: "This is quite a niche area, but many of the necessary skills can be obtained from any type of legal experience. In addition, any medical experience would be useful, such as working in a pharmacy, dentist or hospital, even if it is just to make you more familiar with the medical terminology. Any job where you’re working with the public is also useful, as so much of this area is about dealing with people from all walks of life."

Emma concludes with two important observations about the practical side of practising law, which may not be evident when you’re in the thick of studying it. "First, all the text books go out the window when you start to practise. At that point, you have to think clearly about what’s practical for the client in front of you and thinking commercially about whether a claim is proportionate. Second, I hadn’t realised when I was studying law in an academic context how much the heavy regulation of lawyers affects your ability to practise and advise on the law every day."

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