Medical Negligence Legal Process in Scotland
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Selecting a Law Firm
Once the important decision has been made to progress to making a claim for compensation the next step is to find a law firm which has the skills and experience to take on a case of medical negligence. Investigating several law firms that deal with cases of medical negligence is key so that finding an expert that will take your case to its full potential is vital especially if no liability has been admitted. Once a solicitor or law firm has been appointed then it is up to them to assess your case and decide if the case you put forward is valid and has grounds for compensation.
Proving that the case warrants compensation
Medical negligence cases are to say the least quite complicated even having a well experienced and expert lawyer proving that an actual negligent act took place can be challenging. Inorder for a claim to have weight it must have evidence of negligence and causation. For negligence to have taken place it must be proven that a health practitioner has acted in a way no other health staff would have acted who had ordinary skill. To prove the latter means that the negligent act or below par standard of service has resulted in the patient being injured as a consequence. Both parts must be proven and validated; maybe more than one opinion will be required. It is not enough to just to prove that the standard of treatment provided was below expected.
To what degree of compensation will be awarded
Once expert opinions have been gathered and medical records studied by independent medical practitioners and they are in agreement that there is a case for medical negligence then the case can be filed with the court. The solicitor helped by all the information gathered maybe able to give estimated numbers to the amount of compensation that should be awarded under the circumstances. The claim for compensation will cover the injuries including physical and mental, that were sustained as the result of the negligence, any loss of earnings, loss to quality of life, the cost of all care, medical treatment, medication, equipment that maybe needed to make life as comfortable as possible and any service claims to the family that the victim can no longer attend to.
It is important to say that not all cases of medical negligence will progress to court many can be dealt with out of court whether or not liability has been claimed. Often it is seen more cost effective to settle claims before they enter the court process as court costs can be very lengthy. Both parties can agree to settle out of court if an amount of compensation has been agreed by both parties, the defendants do not have to agree they are at fault or can agree to a certain amount of blame. If the prosecutors are happy with what has been suggested then the case is concluded if not then the case must be dealt with through the courts.
Depending on the severity of the case depends on where it is put on trial. If the case is considered to be of sufficient monetary value the case will be taken to the Court of Session in Edinburgh. If the value of the case is 50 000 or less it will be raised in the local Sheriff Court. The prosecutor will raise the issue with the court who will authorise a summons which in total will last 21 days. The defender will then within 3 days advise the court of who they have obtained as Scottish Counsel. The defenders are then given 7 days to give their side of events and any evidence which may back up their argument. A further 8 weeks is given which can be extended depending if more time is needed to examine not only their case but also the other side’s view.
This time in known as the open record but when this section of the court proceedings is over it becomes known as the closed records. Several meetings at this stage can take place so that all loose ends can be tied up and any additional information discussed. The Proof Before Answer happens next and is a significant part and it is decided now as to whether the case is to proceed to a full court hearing.
There is usually a year from the closing of the record to the actual Proof Before Answer takes place and the hearing usually takes place infornt of one judge who will hear evidence and law, it is upto the judge to make the final decision after hearing the complete range of evidence, experts and maybe witnesses.