James took his first degree in physiology at Edinburgh


University. He then went on to do two years of postgraduate study in law at Leicester and then York. “Biology was my main interest and I toyed with the


idea of being a doctor but it never seemed right for me,” he says. “Law was a bit of change – but I wanted to specialise in medical law to keep my interest in both areas.” Te job at MDDUS proved the perfect match for his


ambitions as a lawyer. Based in our Pemberton Row offices in London, James also provides legal support and representation to doctors and dentists subject to GMC and GDC actions or at coroner’s inquests or other proceedings, but 60 per cent of his job involves case law – from dealing with letters of claim all the way through to potential court hearings.


Forming a view In a typical case a member having received a letter of claim will first get in touch with an MDDUS adviser. Te adviser will get the member’s initial response and might solicit the opinion of a clinical expert. Tis information would then be passed on to James or another solicitor to form an initial view on whether the claimants have a reasonable case. “We would also


review the file and provide advice about how much we think it needs to be reserved for in terms of estimated damages,” says James. “Depending on how severe the injury is you consider


what effect it’s had on the claimant. Have they had to stop working as a result? Care claims can be a big part of it – if someone requires 24-hour care in an extreme example then you know it could be in the millions. But it’s a fairly broad brush exercise at this stage.” Other important factors that must be considered are


liability and causation. Was the member responsible for a breach of care of duty and if there is proven negligence did it have an adverse impact on the patient? Says James: “You have to review all the opinions and


decide whether you think it’s a vulnerable case that we may lose if taken to trial. And if it is clearly a case where we are in trouble in both breach and causation then we would always advise early commercial settlement. But we would explain this to the member and would always try to settle a case with no admission of liability – and sometimes with a confidentiality clause if appropriate.”


In dispute In cases that can be disputed James will draſt a letter of response denying breach of duty and causation, based upon the member’s comments and the expert reports. It is then sent to the member to check for factual accuracy and to ensure they are happy to proceed on that basis.


SUMMER 2012


Te ball is then in the claimant’s court in terms of the decision to issue formal court proceedings but that still doesn’t mean a hearing is inevitable. “It’s very rare to go to trial these days,” says James.


“Only about one per cent of cases make it to court, if that.” Legal reforms over the last decade or so have been


aimed at avoiding the need for costly trials. A key stage in the process is the case management conference, which is arranged by the court with only legal representatives in attendance. It is normally held by phone, except in high court cases, and will involve the solicitors along with the barristers or QCs lined up to argue the case in court. “At that meeting you agree directions for the


management of the case – and exchange witness statements and expert evidence so no one is surprised by what the other side has,” says James. “Te main purpose is to try to narrow down issues without going to trial, to cooperate and find constructive ways of settling the case.” James admits that managing a case can be a game of


“It’s very rare to go to trial these days. Only about one per cent of cases make it to court, if that”


nerves with both tactical and commercial considerations in the balance. “Going to trial is extremely expensive,” he says. “You are talking hundreds of thousands of pounds in legal costs.” Sometimes cases


can settle right up to the week or day before a court date.


“One of my cases was settled on the morning of the trial,” says James. “It’s not an ideal system. But your job is to look aſter your client’s best interests. Tat’s the primary focus.”


Going to trial In cases where neither side yields James will prepare the case for trial – get all the evidence together and liaise with all the parties to ensure they attend and all the proper documents have been served. During the trial he will discuss tactics with the barrister or QC between sessions – how things are going and what questions need to be asked of the claimant’s experts or other witnesses. He will also advise the member on their appearance in the witness box. “We tell them what to expect and how to come across –


what kind of information to offer. You run through the main issues and what to be prepared for in terms of cross examining and questioning. But you can’t coach too much; you can’t tell a member what to say.” No matter how well prepared a legal team is for any


case there is always a risk in going to trial, says James. “Te judge can find for either party on the day. It just depends on which expert he prefers.” So for James the least desirable outcome is a dramatic


day in court. nJim Killgore is editor of MDDUS Summons


15


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24