We’ve all seen reports in the national press about failings in case preparation in recent criminal cases.  In the most extreme case, a trial for rape collapsed after two days in December when it emerged that key evidence favourable to his case had not been disclosed to the defendant.  The consequences of the error were extreme; the defendant had been on bail for two years and had been though an appalling life-changing experience.  There is no suggestion in the media that the omission was malicious or a deliberate misleading of the court by the police.  The prosecution barrister, Jerry Hayes, attributed it to ‘sheer incompetence’ and many media commentators have linked it to a lack of police resources, in particular staff time, training and supervision.  A number of cases are now under review and we will see the conclusion in due course.

There is a direct parallel in that both involve complex facts and evidential assessment and analysis.  If an important factor is left out of consideration by mistake in a clinical negligence claim, then the outcome of the case might be the opposite of what it otherwise would have been. As it is for the claimant to prove the case, he or she is disproportionately disadvantaged.  In an extreme case, someone with catastrophic injuries may go wholly uncompensated.  Lower value but equally serious matters such as stillbirth are even more vulnerable due to exacerbated costs pressure.

There is a warning in these criminal cases for clinical negligence practitioners, especially those less experienced in the field, to heed if they choose to do so.  Careful case preparation is necessary in complex cases for the correct outcome.  Using a good collator and getting the records accurately ordered and summarised from the outset is key.  We can all expect to see additional pressure on fee earner time and experts’ fees in the future. However, it is possible through efficiency and expertise to run these cases properly, which is the very least the patient is entitled to expect.