Healthcare law: area of work

Healthcare lawyers rely on the advice of medical experts to inform their work, explains Margaret Duncan – a senior associate at Kennedys.

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Lawyers need to be able to empathise with the people involved in a case and understand the impact a claim has on their lives.

For many healthcare lawyers, their work will primarily entail clinical negligence cases. This involves handling claims for compensation for injuries that are due to negligent medical treatment. On the defending side, clients will be NHS Resolution (an NHS body that specialises in resolving patient concerns), NHS trusts, private hospitals, GPs, dentists and pharmacies. Lawyers might also be involved in inquests relating to people who die in hospital in circumstances where the coroner needs to investigate the death, or in court cases where a course of action needs to be determined for a patient who doesn’t have the mental capacity to consent to treatment. This practice area also involves some noncontentious work relating to employment within the NHS, property law and regulatory law.

Some firms primarily represent the NHS and hospitals, while other firms will specialise in representing individual claimants, including families of patients who have died. Prospective trainees interested in healthcare law should consider carefully which side they would like to work for, as firms will typically only represent claimants or defendants, and they can require differing skills sets. For example, while lawyers representing defendants will work with a number of healthcare professionals and claims managers, lawyers working for claimants will build longer term relationships with a single client.

What does a typical healthcare case look like?

A typical clinical negligence case begins with the claimant sending a letter of claim outlining their case. The defending side will then seek the advice of appropriate medical experts and, after analysing their advice, draft a letter of response that is sent to the client for approval before it is sent to the claimant. This process can take up to four months. The claimant may then issue proceedings in court and the defendant responds by filing and serving a defence, which typically happens one or two months after the proceedings are served. The case will then follow a timetable set by the court. Some of the lower value cases are resolved within a few months but some cases can take longer – perhaps up to five years. We always aim to resolve cases promptly and amicably through alternative dispute resolution, such as mediations, round table meetings and informal negotiations, which can take place at any point. (Less than 1% of litigated clinical negligence claims against the NHS actually end with a trial.)

What is working life like for a healthcare lawyer?

As a senior associate, I have between 30 and 40 cases at a time. Each case will be managed by a qualified lawyer, who will be assisted by litigation assistants and trainees. A partner usually reviews the case but may not be involved in the day-to-day management.

Late-night and weekend working is very uncommon in this practice area. There are occasionally longer days if, for example, we need to attend case conferences with barristers, but I’m usually in the office from 9.00 am to 5.00 or 6.00 pm.

What are the best and worst things about being a healthcare lawyer?

One of the best things about healthcare law is that we work on very interesting, sometimes topical, cases. If you work for claimants, you’re able to help injured people gain compensation that can make their lives easier. The downside, however, is that we often deal with some very sad cases, especially inquests, where people may have died in tragic circumstances.

Although anything involving the NHS is likely to get a lot of media interest, healthcare law cases are never usually heavily publicised. However, on occasion, the media might report on a particularly serious case, or a case where a very large sum of money has been awarded.

What will a trainee lawyer in a healthcare department do?

Trainee responsibilities typically include attending meetings with clients alongside solicitors, drafting court orders, preparing reports, researching previous case law, interviewing witnesses and drafting witness statements, and instructing medical experts and counsel. Trainees might also attend court hearings or conferences with counsel to take notes. It’s important to know that, while trainees don’t need to have any medical training or knowledge, an interest in healthcare and medicine is necessary.

What skills do healthcare lawyers need?

  • Empathy: lawyers need to be able to empathise with the people involved in a case and understand the impact a claim has on their lives.
  • Analytical skills: we rely on advice from medical experts, so lawyers need to be able to analyse medical reports and then apply the law, to work out if a defendant is legally liable for causing an injury.
  • Negotiation skills: in order to ensure that cases are resolved constructively.

Types of law practised

  • Tort.
  • Product liability.
  • Contract.
  • Employment.

MARGARET DUNCAN is a senior associate in the healthcare department at KENNEDYS . She graduated from the University of Oxford with a degree in law.

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