There is a lot of information on our website about changing solicitors if you are unhappy with the way that your personal injury claim is being conducted. However, what happens if your concerns arise only after your claim has settled?
A good example was an enquiry from a gentleman who had an accident at work. The brief facts are reported anonymously here, but with his kind permission. The accident resulted in an injury to his ankle. There were no broken bones and he was treated with physiotherapy. He instructed solicitors and his employer admitted responsibility for the accident at an early stage. Four months after the accident, his solicitors obtained a report from an orthopaedic surgeon who diagnosed an ankle sprain and advised that he would make a full recovery within three to six months from the date of the report. He questioned this prognosis with his solicitor, as rather than slowly improving, his symptoms were actually getting worse. Despite this, his solicitor advised him that he had little option than to accept the consultant’s opinion and that the report should be disclosed to his employer’s insurance company, with a view to settling the claim. He reluctantly accepted the advice he had been given and the claim was settled.
Shortly after his claim settled, he was diagnosed with Complex Regional Pain Syndrome (CRPS), a debilitating, chronic pain condition. By then, he was unable to work, was in receipt of Incapacity Benefit and his prognosis was uncertain.
As his claim against his employer has settled, it could not be reopened. So what were his options?
Well, he had only two. Either, he could do nothing – which was far from satisfactory – or he could instruct new solicitors to investigate whether the advice that he was given by his former solicitors was negligent, with a view to bringing a claim against them for “professional negligence”.
In fact, our preliminary advice to him, based upon his own papers alone, was that his former solicitors may well have given him negligent advice and he instructed us to pursue the matter further.
At that stage it seemed clear to us that there were a number of failings here, including:
1. a failure to put further questions (either written or in conference) to the medical expert in light of the client’s concerns.
2. a failure to realise and act upon the fact that by the time they had instructed an orthopaedic surgeon, the client had been referred by his GP to a consultant in pain medicine – this despite the client actually telling them of the referral and the fact that it was clearly referred to in his medical records, which presumably that had not bothered to read.
3. a failure to advise the client to “wait and see” if he did in fact make an improvement as suggested by the orthopaedic surgeon.
This claim against the former solicitors was ultimately successful, but it is fair to say that people are often less keen to bring a claim against their former solicitors than they were to bring the initial personal injury claim. People are often warn down by the litigation process and the thought of then having to potentially sue their solicitor, is perhaps one step too far.
However, much usually depends upon the level of loss caused by the alleged negligent advice. In the example given above, the single most important factor to the gentleman concerned was lost earnings, particularly for the future. Ultimately, this head of claim alone fell into six figures, and with a claim against the solicitors being the only means of pursuing it, it was perhaps not such a difficult decision to make.