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Navigating the intricate world of clinical negligence cases can be daunting, but a well-crafted letter of instruction is your guiding star. This pivotal document sets the stage for the entire case, ensuring that all parties involved are aligned and focused on the key issues at hand. So, what exactly should this letter contain? Let’s dive in.
Setting the Stage: The Essentials
At the outset, your solicitor should clearly outline your remit and the scope of your work. This is crucial because it defines the boundaries of your involvement and ensures that your report remains focused. You might be tasked with reporting on:
For the Claimant: Building a strong case
1. Thoroughly review key documents
Start by carefully reading the Letter of Instruction and the claimant’s witness statement. It’s essential to take your time and think broadly about the issues at hand. Always test alternative hypotheses by asking, “If this is alleged, how and with what evidence will the defendant respond?” This critical thinking approach helps anticipate potential challenges.
2. Meticulously examine medical records
In claimant cases, it’s vital to read all medical records thoroughly. Be objective and balanced in your evaluation. You’ll likely find evidence that supports the claimant’s case, but you might also encounter evidence that contradicts it. Use both judiciously to maintain credibility and strengthen your argument.
3. Discuss with your Solicitor
Discuss your findings and preliminary opinions with your instructing solicitor. This collaboration can help clarify challenging evidence and may prompt the claimant to provide additional information. Engaging in open communication with your solicitor ensures that your case is as robust as possible.
4. Craft strong opinions
From my experience on the defence side for over 15 years, I remain amazed at how weak and poorly formulated many allegations are. On at least half a dozen occasions, the allegations in the Letter of Claim did not make sense! The allegations are at the heart of a successful claim, so make them irrefutable. Aim for a few strong, impossible-to-dispute allegations rather than numerous weaker ones. Your goal is to make them as watertight and categorical as possible.
5. Answer questions directly
Your instructing solicitor will often provide questions for you to address. Ensure you answer these directly and clearly in your report. This precision is crucial for maintaining focus and ensuring that your report is aligned with the case’s objectives.
For the Defendant: Crafting a robust defence
1. Analyse the allegations
Begin by reading the Letter of Instruction and the Letter of Claim. Understand the issues and allegations thoroughly before proceeding. This foundational understanding is critical for crafting a strong defence.
2. Evaluate the Defendant’s response
The defendant’s witness statement or response to the claim can be invaluable. A well-formulated response can significantly impact the case, so pay close attention to the quality and content of these documents.
3. Scrutinise medical records
Be balanced and objective in evaluating the evidence provided by the medical records. Your report should directly address the allegations and questions posed by your instructing solicitor. Repeat important points as necessary to ensure clarity and coherence.
4. Structure your report carefully
Set out the allegations and questions verbatim in your report and answer them directly. The wording and responses are critical and are likely to form the major part of the responses in the “Letter of Response” or Defence. This structured approach ensures that your report is comprehensive and focused.
The power of Medical Records
Medical records are the bedrock of any clinical negligence case. They provide contemporaneous and unbiased evidence that can support or refute claims. Here’s how to make the most of them:
1. Ensure Completeness:
Make sure you have all the records you need. It’s surprising how often something crucial is missing.
2. Be Systematic:
Go through each section methodically. Use markers to highlight important findings to avoid losing track of them.
3. Formulate Your Report Early:
As you read, think about how your report will be structured. This takes practice but is invaluable for clarity and coherence.
4. Dig Deep:
Read everything superficially first, then delve deeply into anything within the area of dispute. You never know what pivotal evidence you might uncover.
Recently I did a report on a 42 year old claimant developing acute glaucoma from using steroid eye drops for several weeks. A letter from 1969 amazingly showed evidence that the male members of the family (Father and Grandfather) developed unexplained acute glaucoma in their early 40’s. This was enough to win the case!!! But we would not if I had not found this!! Read everything very carefully, it is amazing what you can find.
I did a case of a 40 year old who alleged misdiagnosis of an MI. Very careful reading of the outpatient letters 2 years later revealed that he had taken a large quantity of recreational cocaine the night before the MI and never told the GP. This very significantly transformed the case.
5. Quote Verbatim When Necessary:
Including long quotes from the records can save time later and provide clarity for the court and lawyers.
Before you start working on your report, consider this checklist to ensure you’re fully prepared:
When structuring a report, it’s important to follow a logical order to ensure clarity and coherence.
With thanks for the insights and tips from: Dr Jonathan Moore, GP and Expert Witness.