Archive for March, 2013

Is A Career In Medical Negligence For You?

Torts, is often a law student’s favorite subject during law school and is usually where the “juiciest” (quite literally) cases come from. All of us remember the (in) famous Donoghue v. Stevenson case where poor Donoghue found a snail in her ginger beer. She decided to sue Stevenson for breaching his duty of care to provide a safe product to Donoghue. Though her claim was for a measly £500, this case set out the law for negligence and perhaps rid England and Scotland of snail-infected ginger beer!

However, given the plethora of torts available to a litigant, picking a career in tort law will largely be determined by one’s eagerness to get down and dirty. One such field is medical negligence and it supports the theory that medical professionals should perform their duty as one possessing superior skills and education.

Why Medical Negligence?

You are an attorney who loves a challenge.

Medical negligence falls neatly under the general law on negligence.  However, proving the element of causation becomes particularly challenging in medical negligence cases. A plaintiff typically visits a doctor after he/she has been suffering from a medical condition. Showing that it was his/her preexisting condition that resulted in her injury as opposed to the doctor’s negligence is incredibly challenging and attorneys will have to find innovative arguments to show otherwise. Further, calculating damages also proves challenging since an attorney will have to segregate any pre-existing conditions from conditions or injuries that result from the doctor’s negligence.

You enjoy the art of negotiating.

Doctors covered with malpractice liability insurance, on being sued, will let their insurance companies deal with the respective claim. This means, in addition to having to deal with the negligent doctor, you will have to negotiate with an insurance company. Half the battle with insurance companies lies in the art of negotiation and therefore if you enjoy negotiating, a career in medical negligence is right up your alley of expertise.

You possess exceptional people management skills.

The key to a successful career in medical negligence lies in your ability to communicate with people. Having a genuine interest in an individual’s problems and sensitivity towards their medical conditions will help build your clientele in this field.

You want to help rebuild lives.

The joy that comes from helping someone rebuild his or her life is unexplainable. A career as a medical negligence attorney will help you satisfy your inner inklings to do something good for society.

For more information on medical negligence visit axiclaim.co.uk


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The Importance of Defence Solicitors in the Criminal Justice System
Steel and Shamash

It is not uncommon for a criminal law solicitor to be asked how their conscience allows them to defend criminals or those charged with committing a criminal offence. In particular, people don’t always understand how legal professionals are able to help someone who, in some cases, may have committed a serious crime.

First of all, without criminal solicitors and a system for legal representation of the accused, there would be no criminal justice system, or at the very least an unjust one. For justice to be done, it is vital that defendants have the right to legal advice and assistance. Perhaps obviously, the main reason is that not everyone who faces criminal charges is guilty. If those charged of crimes were not entitled to sufficient legal counsel there would be many more innocent people behind bars. It is easy to presume guilt and if someone charged of a crime did not receive legal advice then a jury may struggle to understand their side of events and may quickly, therefore, dismiss any defence. However, it is not just those whose innocence or guilt is in question that defence solicitors advise; they are also required to represent those who have pleaded guilty. In such scenarios, lawyers still need to present a case and this can have a significant impact on the specifics of the accused’s sentence.

Everyone suspected of a crime is entitled to legal counsel; advice and assistance from a lawyer. This entitlement begins as soon as someone is arrested and before they can be charged. The suspect is not required to answer any questions until they have received such counsel. They may decide to hire their own solicitor or they can use one provided by the state. They also have the right to legal assistance for the duration of their case; through an entire investigation, up to and including a court case should there be one.

A defence solicitor has a number of responsibilities. They gather information around the crime, or alleged crime, looking for anything that could assist their client’s case. This will include interviewing any witnesses. In addition, legal advice is a big part of the job, from the stages prior to their client’s police interviews through to their court appearance, where there is one. Advising a client can, in some instances, involve advising them to plead guilty. There will be times when a suspect wishes to plead innocent but their solicitor knows the evidence is stacked against them and seeking a lesser sentence will be easier should guilt be admitted. Where a suspect is involved in a court case they will be represented in court by a barrister, not by their solicitor, but the solicitor will still be involved in advising their client and preparing the case for the barrister.

While some may not understand the mind-set of a criminal law solicitor, considering the actions of those they may have to deal with, they have to remain professional at all times. It is their job and they cannot afford to have personal opinions of their clients. Fundamentally, there are two types of cases that a criminal solicitor will deal with; where they represent someone whose innocence or guilt is in question and where they represent someone who has admitted guilt.

When representing someone who has been accused of a crime but denies it, a solicitor will be gathering the evidence to make a case for their client’s innocence. From a solicitor’s point of view they are doing something valuable; attempting to achieve justice for someone who may be innocent.

It can be more difficult on a personal level when representing someone who has admitted guilt, especially where it is in relation to a serious crime. Here, rather than attempting to prove innocence, a lawyer is attempting to reduce the sentence as much as possible. Depending on the severity of the crime they may be trying to avoid a custodial sentence or reduce it.

Where a solicitor is defending someone they believe to be innocent it is easy from a psychological point of view. They believe they are trying to seek justice on behalf of their client. Representing someone who has pleaded guilty of a serious crime is more challenging. It does, though, become easier with experience. Solicitors have to remain professional and perform their duties to the best of their abilities. To some it may seem cold, but it is not only a job, it is a fundamental cog in the judicial system and to ensure that every individual receives their rightful access to a fair trial, defence solicitors must keep personal feelings out of the equation. They cannot become too emotionally attached or prejudiced. There are inevitably times when this is challenging but it is all part of the job.

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A larger version of this infographic is available on the Beardsells website at present

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Would You Rather Pay Your Attorney Or Your Doctor For Cosmetic Surgery?

Judging by the title to this blog post, you are wondering why making a choice between a doctor and an attorney is even necessary. Unfortunately, for a large percentage of patients seeking cosmetic surgery, seeking an attorney post cosmetic surgery is becoming a more common phenomenon.

In the most high-profile case of alleged negligence involving cosmetic surgery in the UK, Denise Hendry, wife of ex-Blackburn Rovers and Scotland footballer Colin Hendry, almost died in 2002 after liposuction she had at the Broughton Park hospital in Preston went badly wrong.1Though the aforementioned case was one of a liposuction “gone wrong”, a majority of patients trust their doctor to perform the promised services with the highest degree of skill and professionalism. But trust will take you only so far and if the questions presented below are questions that you have asked yourself prior, during, or after surgery, you might have a ripe claim for medical negligence.

Were you safe during and after surgery?

If at anytime during or after your surgery, you felt unsafe, then clearly your doctor was not performing his duty of care to you as per acceptable legal standards. Doctors need to perform surgeries under hygienic conditions to avoid infections as well as set up adequate post surgery wound care. The most common negligence actions fall under this category. These include but are not limited to excessive swelling, infections, scarring, etc.

Were you informed of all associated risks relevant to the procedure?

One of the most important duties a doctor must perform is informing you of all risks prior to surgery. A good doctor will sit you down and carefully explain all risks and complications associated with your surgery. Further, such doctor will allow you adequate time to review your decision based on his/her risk assessment and ensure all your questions are answered. If your doctor fails to have this conversation with you, contact your local attorney to discuss a claim for medical negligence.

Did the doctor have your consent for all the procedures performed on you?

If you consulted your doctor for cosmetic surgery, naturally he/she has your consent to perform the requested procedure. However, sometimes doctors perform surgery outside the ‘scope of consent’, justifying it with “I knew if I pinched that region of your nose a bit further, it would look as good as new”. Remember, doctors need your consent prior to performing an operation on you.

These are just some of the many causes of action that are available under a medical negligence claim. Since most negligence claims have strict time limits associated with them, it is imperative that you contact a solicitors such as Pryers at the earliest.

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Should America Embrace ‘New Age of Alternative Business Structures’?
Speaking at the New York Bar Association Conference in October last year, I summarised how the reputation and duty of the legal sector can remain intact, if ‘professional standards’ are maintained.

Despite the opportunity for Alternative Business Structures to operate unethically, it is ultimately down to the individuals behind them to uphold professional legal service providing standards.

Here is an excerpt from my speech:

“ABSs allow lawyers and non-lawyers to share the management and control of a law firm, while allowing for external investment and ownership. ABSs, like other legal practises, are licensed and regulated by the Solicitors Regulation Authority (SRA).

“At a practical level, the licence application takes between six to nine months, although it is expected that this duration will diminish as the SRA’s experience increases.

“The duty of the solicitor is not to allow his or her independence to be compromised and to act in the best interests of the client.

“This issue is particularly acute in the personal injury sector – the specialism in which I practise. In June 2012, 230 Stage 1 license applications for an ABS have been received by the SRA. The majority those forwarded and granted are in the personal injury sector.

“My conclusion is that the door has already been opened by Australia and the UK, and the United States and Portugal will be left behind if they do not embrace this new age of alternative business structures.

“That is not to say, however, that I am not acutely concerned about the need for the highest professional standards to be maintained. However, I am far from convinced that ownership lies at the heart of the answers required for maintaining excellent professional practise.

“Sadly, in the UK and I believe elsewhere, there are too many examples of professional bodies falling woefully short of the professional standards, which they ought to uphold and maintain. It is about high integrity individuals whether it is an ABS or non-ABS structure which applies.”
This was part of a much heartier monologue, where I went into detail on the origin of ABSs in the UK, how they were met with criticism from the beginning here and how they were defended by Sir David Clementi last year.

For the public, the benefits were listed by Clementi as follows:

More choice
Reduced prices
Better access to justice
Improve consumer service
Greater convenience
Greater consumer confidence
He also cited the potential benefits for legal service providers as follows:
Access to finance
Spread of risk
Ease of hiring and retaining high quality staff
More choice for new legal professionals

There is no reason why a corporate entity should not be able to offer legal representation to the public and I recognise this; I’m simply raising awareness about how it is up to the individuals behind these companies to provide a service in line with the first set of Clementi’s listed benefits.

I am not actively promoting the idea of ABSs over independent personal injury solicitors but instead acknowledging that they are now an inevitable part of the UK legal sector – they can work to serve the public in the US too…if managed properly.

About the Author

John Spencer is Director of Spencers Solicitors in Derbyshire whose practice deals with all types of personal injury compensation claims. He blogs regularly and is a Claimant Director of the Portal Co board.

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Cosmetic Surgery: What to do if it goes wrong
No amount of metaphorical cosmetic surgery can completely save the NHS from its now muddied image. Following the PIP scandal and Francis Enquiry, one UK law firm has advised patients on what to do if they fall victim to medical malpractice.
Approximately 47,000 British women were mistreated in the PIP scandal, as their breast implants were made from industrial grade silicone…instead of material that was medically approved. This has caused MPs to raise concerns about Britain’s ‘body-image crisis’ but Britain’s legal firms have refocused the spotlight onto medical negligence:
“Whether you’re treated in the private or public sector, everyone has a right to a reasonable standard of care. In some cases, this just hasn’t happened.” Bentley Solicitors
The Francis Enquiry released in February 2013 exposed the NHS; 290 recommendations were made in the QC’s analysis. The comprehensive list of failings underlined within the report has demonstrated just how critical it is for NHS reform.

Claiming Against the NHS
The NHS Litigation Authority is the official body that deals with all compensation claims made against Britain’s National Healthcare Service. If the PIP implant operation was performed by the NHS, patients are advised to follow this three-stage process when making a complaint:

During this process, the personal injury solicitor sets to work – compiling all the necessary information on the incident and creating a case file which details everything the eventual court needs to know, in order for the victim to receive their deserved compensation.

Expert Help
Claimants are also advised to get in touch with organisations like NHS Direct, the Patient Advice and Liaison Service, the Independent Complaints Advocacy Service and the Citizens Advice Service.
Still, to strengthen the chances of winning cosmetic surgery claims, it is the experienced legal firms that need to come into play.
A personal injury lawyer who specialises in medical negligence will know exactly how to make a strong claim against the NHS, while honing in on securing the maximum pay-out. Where PIP cases are concerned, that pay-out could be as high as £15,000.
Final Advice

The general consensus on this issue is that those looking for cosmetic surgery ought to stick to NHS-trained surgeons and avoid private practices. In the event of something going wrong, there is a clear justice avenue to go down with the help of a legal expert.
In terms of private clinic malpractice, the route to a successful claim may be more complicated. Nevertheless, the same personal injury solicitor can make sure victims are compensated for their suffering – it’s much more difficult to fight for it alone.

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Keeping On the Right Side of the Law – Landlords & Tenants
By Landlordslawyer
For Landlords, a written tenancy agreement is vital when you let your property, otherwise you could fall on the wrong side of the law.   While contracting in writing is not a legal requirement in England & Wales, all assured short hold tenants have a right to be issued with the terms of tenancy within twenty-eight days, and so it is in your interest to have planned these in advance. Moreover, under the Landlord & Tenant Act 1985, if letting residences by the week, you would find yourself before a stern looking magistrate if you failed to provide a rent book, your address and the terms of the tenancy.
Remember, all tenancies have certain terms implied by law which cannot be removed by private agreement. It is therefore helpful to remind all parties that, under the same act, assuming the property is a main residence for a genuine rent, you have a strict liability to keep the property externally and structurally well-maintained with well-maintained heating & sanitation equipment and well-maintained equipment for receiving water, gas and electricity, so far as these exist. You must also give a Section 21 Notice to Quit of two months, or the length of the rental term if longer.
In turn, you should remind the tenant of two facts. The first, that he has a duty to behave in a tenant-like manner: this includes cleaning and minor repairs. The second: he need write for your permission, not to be unreasonably withheld, before making alterations.
Moving on to that you should explicitly require, obtain the tenant’s consent for you to access the property for repair and for genuine inspections, so long as you give advanced notice. If there is a guarantor, make sure his role is mentioned so he can be forced to pay. A written contract also makes it practicable to enforce rules you wish to set against sub-letting, the tenant’s becoming a lodger’s landlord, smoking, keeping animals, replanting the land or the like. At this point, mention any reasonable restrictions you wish to make on the tenant’s ability to grant bare licences (take in genuine guests) over a long term. Further, you ought stipulate that the tenant is liable for cleaning costs if the property is not in a tenantable state at the end of the tenancy: it is advisable here to make explicit your expectations regarding minor repairs, cleaning windows and gardening.
Finally, be warned that even if rent is not paid weekly, the tenant does not ask to see the terms, and you are prepared to run the risk of crossing bridges as you come to them, the rental price and the dates on which rent is due would be your word against the tenant’s without a written contract. That thought alone should be enough to spur one on to having a formal tenancy agreement in place. After all, they are not that complicated to draft, and templates do exist.
If you’re a Landlord or Property Agent, Landlords Lawyer can assist you in making sense of the legal aspects of tenant law and the court processes, to help evict a nuisance or rent evading tenant.  They can be reached on  @landlordsupport or Google +

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Back soon

I have been ill but should be back to blogging next week

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