Here at Dental Law Claims we understand that bringing a dental negligence claim is a huge step and one which should not be taken lightly. Most clients have never been involved in the dental litigation process, so we explain below the typical steps involved in a dento-legal claim.
Once you have completed our questionnaire to give us the background as to why you think your dentist has been negligent, we can then assess your claim. Our specialist dental solicitors will look at your dental claim and more specifically:
Limitation: Whether you are within the time limits to bring a claim against your dentist;
Breach of duty: Exactly how the dentist has been negligent;
Causation: Looking at the chain of events leading up to your dental injury.
Your dental injury: Exactly how you have been injured by your dentist and whether you are likely to lose any teeth as a result of the negligent treatment.
If all of the above steps are in order, we will obtain your dental records from all of your treating dentists and then re-assess your dental claim.
From the records our specialist dental lawyers can draft the “letter of claim” to the dentist that has mistreated you. This letter of claim follows a template laid down under the Court rules and must supply the dentist with certain key information about your dental claim.
At this stage we will make sure that you have insurance in place in case your claim does not proceed to protect you from any costs implications that may arise.
The dentist will usually pass the letter of claim on to his or her defence organisation (like an insurance company) who then have 4 months under the dental claim Court rules to supply a “letter of response” to the dental negligence allegations.
We will try to achieve a negotiated settlement of your dental negligence claim and most dental claims are resolved at a relatively early stage and without the need to commence court proceedings. However on occasion a dentist may deny or resist a claim and it may be necessary in some dental cases to commence court proceedings in order to resolve the claim.
If we have to commence court proceedings to pursue your dental claim you are the “claimant” and the dentist that treated you is the “defendant” and the following legal procedure applies:
Before we can issue court proceedings your claim will be fully reviewed by our dental negligence specialist solicitor as starting court proceedings can be costly and the claim is then effectively in the hands of the Court who will run your dental claim to a very strict timetable following the court rules.
Here at Dental Law Claims we will make sure that both you and your paperwork are ready to start court proceedings and that we can advise you of the realistic prospects of success in your dental claim if your case.
The court rules state that before a claim is commenced, you must have a supportive report from an independent dental expert. Here at Dental Law Claims we will advise you on a suitable expert close to where you live. You will be examined by the expert dentist and help you arrange your appointment.
The independent dental expert will consider the papers in your claim, including the letter of claim, the letter of response and your dental notes and records and will take into account anything you may have mentioned at your examination. The dental expert will then prepare a report giving an opinion upon whether your dental treatment was substandard and identify what injury you have suffered as a result.
The expert will also prepare a condition and prognosis report with costings to show the Court what it is likely to cost to put your teeth right.
We will instruct a barrister to draft the Court documents in your dental claim. It is likely that the barrister may wish to meet with you to discuss your claim and it is likely that the independent expert will also be at that meeting. The idea here is to thrash out the issues in your claim and for the barrister to ask your dental expert any questions about his or her report in order to “test the evidence” before your claim gets to trial. After all, it is far better to know any weakness in your dental claim at the earliest opportunity.
The barrister will draft certain key document in your dental claim such as:
The Particulars Of Claim: the document which sets out the chronology of your dental claim, the allegations of negligence against your dentist and the details of your dental injury;
Schedule of Loss: the document which sets out any losses incurred and any future losses. It gives the Court an idea of what you have spent on your dental treatment and what it might cost to put right.
This is the step which starts the ball rolling in Court. Your specialist solicitor will send a claim form along with the Court fee to the Court. The claim form sets out the parties details and the nature of the claim along with an estimated value of your dental claim. The court will then register details of your claim and seal the claim form to show the date upon which it was issued.
Within 4 months of the date the claim form was issued, you must send the claim form along with the other legal documents drafted by your barrister to the dentist’s solicitors.
Along with the claim form, the dentists solicitors will also see a copy of the particulars of claim, the schedule of loss and a copy of your independent experts condition and prognosis report.
The dentists solicitors have a strict time limit (usually 28 days- but can be made longer by agreement-up to a maximum of 56 days) to serve a Defence to your claim which confirms which of the allegations put forward in the particulars of claim are agreed or not. The defendant dentist may argue that there has not been any breach of duty of care (no dental negligence) or that even if your dental treatment was substandard, that it has not caused you any injury. The Defence has to answer the allegations of negligence contained in the particulars of claim.
Disclosure of documents is one of the first steps in the litigation process and quite often disclosure can reveal documents which might change the prospects of success in a claim (for better or sometimes for worse).
Before proceedings are commenced and the claim is in the “pre action” stage, there is generally no obligation to reveal any documents that adversely affect your own claim. This changes once Court proceedings have been issued and served and parties are expected to “put their cards on the table” at an early stage in respect of documentary evidence.
In a nutshell, if you are involved in a civil dispute, you are required by the Civil Procedure Rules to share information with your opponent -which at first glance may seem a little odd! This duty of disclosure includes both documentation that supports your case and documentation that can potentially undermine your case. The process through which information is made available is known as “disclosure” and disclosure is usually made by way of supplying your opponent with a simple list of documents that you hold.
It is important to note that a “Document” according to the Court rules also means all electronic documents such as photographs, tapes, computer records, emails, electronic documents stored on servers of backups, electronic documents that have been deleted or media and also any metadata (data that describes information about other data).
The disclosure process requires both parties to make all documentation relevant to the matter in dispute available. The aim of this is so that the Court has all of the relevant facts through documentary evidence at its fingertips so that justice can be done.
The mechanics of the disclosure process are set out in Civil Procedure Rule 31 and the Practice Direction to that rule. https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part31
Both parties have to sign a disclosure statement which confirms that they understand the duty of disclosure and confirming that they will comply with it. There are harsh sanctions available to the Court against either party for breaches of the disclosure rules. Proceedings for contempt of Court can be brought against a person who makes a false disclosure statement.
How hard do I actually have to search for documents?
The Court rules state that you must carry out a “reasonable search” for documents and that disclosure also extents to documents which are or have been within your control and not just those documents which are currently in your physical possession. It also covers documents which you have a right to possess and documents which you have a right to inspect, for example documents contained in your medical records.
How is disclosure actually made?
Once a list of documents have been exchanged, both parties will look at the list and will request copies of any documents listed or inspection of the originals which have not been seen before. In fairness, in dental claims both lists of documents are very similar, usually made up of things like dental records, treatment plans and letters of complaint and replies to those initial complaints which may not be disclosed with the initial dental records.
It is important to note that the disclosure obligation continues until the proceedings are concluded so if you stumble across a document which has not been seen before or updated dental notes are obtained as treatment is ongoing, then an updated list of documents must be sent to the opposing party.
Specific disclosure application – where your opponent has failed to provide full or adequate disclosure
If you suspect that a relevant document has not been disclosed by your opponent, you should notify them that you intend to apply to Court for an order for specific disclosure. If this does not result in disclosure of the document in question, you can ask the Court to order that the document is disclosed by way of a Court application. Supportive evidence usually in the form of a witness statement is needed to support any application.
If you are successful and an order is granted for specific disclosure of a document and this is not complied with, this may result in your opponent’s case being struck out.
Certain documents can be withheld from inspection on the basis that they are privileged. The following documents are privileged:
All communications that are sent by me to you (solicitor/client) and vice versa in my professional capacity are covered by legal professional privilege and are therefore privileged from inspection providing they were sent for the purpose of obtaining legal advice or assistance.
Communications that I have as your solicitor with third parties are also privileged from inspection on the basis of litigation privilege if they are both created after the litigation was contemplated and are made for the purpose of giving advice or obtaining evidence in relation to the litigation.
Once the Defence has been received, the Court will set a strict timetable for certain key actions to take place, one of these actions is to exchange evidence with the defendants solicitors.
You are under a legal duty to disclose copies of all documents which you may wish to rely on at trial, these include your dental notes, records, xrays and any dental study models, treatment plans or evidence of any financial losses.
Both the parties must exchange witness statements from anybody who they wish to stand up and give evidence upon their behalf at trial.
The defendant will produce a witness statement giving the reasons behind your dental treatment. You will be asked by your solicitor to produce a witness statement in support of your claim. Here at dental law claims we have an easy to follow template to make drafting your witness statement much easier and we will of course help you draft it.
Your independent dental expert will also be asked to exchange his or her report upon liability and causation and the defendant must give us a copy of their report at the same time. These reports are crucial as they usually give the other party a good idea of the strengths and weakness of each others claim.
It is down to the trial Judge to decide which experts report is more believable and this will ultimately decide who wins and who loses at trial.
The court timetable will say that the experts must meet in order to thrash out the issues which are still in dispute as it is these issues will then be decided by the Court at trial. Most “meetings” between dental experts take place over the telephone in order to save both time and costs.
It is worthwhile mentioning that whilst all of the above matters are ongoing, the parties are under a duty under the Court rules to consider settling the dental claim at all times.
Either party can make an offer to the other party to try and negotiate a pre-trial settlement and it is quite usual for the parties to make offers to each other at various stages of your dental claims process.
The parties can make settlement offers to each other under Part 36 of the court rules and hence they are called “Part 36 settlement offers”. It is important to realise that Part 36 offers have certain cost consequences if they are not accepted within a strict time limit.
Here at Dental Law Claims we will give you information and advice on both making suitable settlement offers and also when they are received are various stages in your dental claim.
Most dental claims settle after the exchange of evidence as it is at that stage that the strengths of each parties case is clear to the other.
It is fair to say that most dental claims will settle before they proceed to trial in front of a trial Judge, despite the fact that court proceedings have had to be issued.
If it looks likely that your claim will not settle before trial, your expert solicitor will arrange a pre trial conference with your barrister to discuss the outstanding issues in your claim and to ensure that you wish to proceed.
The barrister will the present your dental claim to the Court along with the experts evidence and the evidence of your witnesses. The Judge will then have to decide whether the defendant provided you with substandard dental treatment and if so the extent of your injuries as a result. If you go on to win your claim, the Judge will also decide how much compensation or damages you will receive.
From the issue of the claim form to trial will take approximately 12 months but could be longer if your claim is complicated or has more than one independent expert involved.
Contact Alex at Dental Law Claims on (direct dial) 01694 722 134 for more information or advice on your dental claim.