Receiving a lawyer's letter: What to do next

You will most likely be asked to send in a copy of the lawyer’s letter and/or court papers so we can better understand the nature of the claim. A file will then be opened. Once it is confirmed that you are entitled to MPS assistance in relation to the potential claim in accordance with the MPS Memorandum and Articles of Association, a medicolegal adviser, or a medicolegal adviser and a claims manager (the “file handler/s”), will be appointed to provide support and professional reassurance; they will be able to guide you through the claims process.

The file handler will be responsible for instructing Panel to act on your behalf, where required, and will liaise with Panel in order to provide MPS input and instructions in conjunction with you. The only exception to this situation is where you have been served with court papers and the time for responding or acknowledging service of those papers is very limited – in which case you should make contact directly with Panel in your jurisdiction (see the MPS website for up-to-date details).

In these circumstances Panel will contact MPS to request authority to assist on your behalf and to confirm instructions to act on your behalf before doing so. We would ask that in these circumstances you also make contact with MPS to notify us that you have taken this step, so we can liaise with Panel.

Next steps

Once a file has been opened and authority to assist confirmed, it is likely we will ask you to provide a copy set of your notes for the patient, together with a report detailing your involvement with the patient’s care and, where required, a response to the allegations being made. Where a patient’s attorney has sought disclosure of their client’s medical records, then Panel will be able to advise you on this.

Legal professional privilege

As a potential defendant to a claim, you have a right to what is known as legal professional privilege or litigation privilege (‘privilege’). This privilege ensures that all correspondence that passes between you and your attorney, including reports and statements, is protected if its purpose is to enable you to seek legal advice. The patient and their legal advisers are not entitled to see these documents. It is important to remember that as such, documents are not patient records and they should not be stored with the patient’s medical records.

What a claimant has to prove

For any claim to succeed the claimant has to prove that:

1. The patient was owed a duty of care by the treating clinician – in clinical negligence cases this duty is usually implied and rarely open to challenge. 
2. There has been a breach in the duty of care – in essence that the care provided would not be supported by a competent body of general medical opinion in the clinical specialty in which you practise.
3. That the breach of duty has caused or contributed to the injury, loss or damage suffered and was reasonably foreseeable (what lawyers refer to as causation). To establish liability it is likely the claimant will need to obtain independent expert medical opinion on both breach of duty and causation. As an example, say, in a matter involving an alleged delayed diagnosis of a scaphoid fracture by a GP, this would entail an opinion from a GP expert to comment on the GP management and a report from an orthopaedic expert to comment on causation.

In investigating the claim, MPS too will involve independent medical experts in assessing the merits of the case. If a claim is successful, a claimant will generally be awarded financial compensation for the harm suffered as a consequence of the negligence.

Finally

If a claim is pursued and it has not been possible to resolve issues without the need for legal proceedings, then court papers setting out the formal allegations will be served. Panel, in conjunction with you and the file handler, will consider how best to investigate and respond to the claim: what expert input will be required and the procedural steps to be taken.

Whilst it is stressful and daunting if legal proceedings are issued, it is important to note that only a very small percentage of issued cases actually go to trial. Where expert evidence is obtained and is supportive of the management, then the matter can be defended; the MPS claims team will then review and evaluate the strength of the case with you as it progresses through the courts before making any commitment to defend a case to trial.