Over the years lawyers have become more specialised to the point where most find themselves ‘pigeonholed’ early on in their career.

These days clients expect, and in some cases demand, a lawyer who is a specialist in his or her field.

As we know, for many years now lawyers have specialised exclusively in the area of Clinical Negligence Litigation utilising the two accreditation schemes which recognise expertise in this area – the Law Society Clinical Negligence Panel and the AvMA Lawyers’ Accreditation Scheme.

Whilst members of these Panels are recognised as having the specialist knowledge and experience to advise victims of medical accidents, prosecuting the claims is certainly not restricted to panel members or even those under their supervision.

Which begs the question: should Clinical Negligence Litigation be restricted in relation to who can conduct such claims?

Should we ensure that only specialist lawyers and those properly supervised by them are allowed to accept instructions from victims of a medical accident?

Yes, I know I am confirming most lawyers’ suspicions that we Clinical Negligence lawyers are an elitist bunch; but I make no apologies for our commitment to our clients and our dedication to getting the results they deserve.

As a Clinical Negligence specialist, the concerns that I have about non-specialist lawyers conducting Clinical Negligence claims are that they do not have:

1. A Public Funding franchise; and
2. The detailed knowledge of medicine and law required; and
3. The same experience of dealing with the NHS or private healthcare providers.

So are victims of medical accidents losing out when their case is conducted by a non-specialist? Here is an example of a case that I was involved in where the original lawyer was a non-specialist:

Case Study

The client had suffered a nasty nerve injury during a hysterectomy. She sought advice from a local firm who advertised that they dealt with Personal Injury claims including Clinical Negligence. They did not, however, employ any Panel members and therefore did not have a Public Funding franchise.

The Client was promptly signed up to a CFA (No Win No Fee). Medical records were obtained under the Pre-Action Protocol for Clinical Disputes and some of the leading Experts in their fields were instructed. So far, so good.

Once the reports were received the previous lawyer went quiet for a few months. The Client then received a letter enclosing the report dealing with causation.

The covering letter explained, briefly, that unfortunately the Experts did not support a claim for negligence and the case could not therefore continue.

Limitation was due to expire in one month’s time.

The file was subsequently transferred to me. Upon review it was clear that the previous lawyer had completely misunderstood the Experts’ reports. Worryingly, the covering letter of the causation Expert included a comment along the lines of “I am sorry to say that the injury can only have been sustained through a negligent act”.

All reports agreed that the way in which the surgery had been conducted was sub-standard and that it had caused the client’s injury and sequelae.

On reviewing the records, the Limitation period had expired earlier than thought, but still whilst the previous lawyer had conduct of the claim.

What can be done?

I recently came across an article in the Clinical Risk Journal written by three doctors involved in Clinical Negligence Litigation.

The article sought to address the issues of whether specialist Clinical Negligence Lawyers had a better success rate as opposed to those who are non-specialists.

In particular, the writers looked at the quality of the Letter of Claim and the way in which the records were sorted. However, the focus was on the outcome of cases and the percentage cases discontinued.

The specialists won; narrowly.

However, I do not feel that the issue is whether specialists win more cases than non-specialists. Surely the real issue is whether we provide a better, more cost-effective, service for those affected by negligent medical treatment.

We all make mistakes; even those who are accredited by AvMA and the Law Society. However, with proper regulation and cases only conducted by specialists, hopefully under settlement and the provision of negligent advice can be reduced.

After all, the aim of these cases is to obtain the maximum amount of compensation for victims of medical accidents who are often vulnerable and disillusioned. Negligent advice and inappropriate conduct of cases will only serve to compound that.

We are already getting a hard time for perceived excessive costs (sometimes it is alleged that we receive £800.00 per hour!) and draining the NHS budget. While the NHS have much work to do themselves in this regard, surely we can assist by conducting these cases efficiently and avoid pointlessly increasing costs.

This can only be done when the lawyers overseeing these cases are experienced and accredited specialists.

Lee Raynor is a Clinical Negligence Lawyer and Director at Collaboras.

This article originally appeared in the Legal Executive Journal.