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Inside a clinical negligence claim

Receiving a claim for clinical negligence is a daunting prospect; unfortunately for those working in medicine, it is also increasingly likely. Gareth Gillespie takes you step-by-step through the process

Although most doctors will avoid claims for clinical negligence during their careers, the possibility of receiving one remains. Large claims in particular are on the rise, with MPS seeing an increase of 250% in the number of reported claims valued at over R2.5 million over the past five years.

Because of this, we thought it useful to provide members with a step-by-step account of how a civil claim progresses – while also emphasising what you can do to assist MPS at each step, to ensure as swift and robust a response as possible. 

Warning shots

Because a claim for clinical negligence can arise many years after an adverse event took place, you may not see a claim coming – but at other times you will be aware that something has gone wrong, in which case you should notify MPS at the earliest opportunity. The earlier we are in receipt of the facts, the sooner we can start looking into how we can best provide assistance.

Another indication that a claim is imminent is a request for a patient’s records. This should not be ignored; as above, it is an ideal time to contact MPS. There may also be a fee payable to you to cover any costs, and we can find out exactly what that is. Disclosing medical records has been covered in more detail in the Casebook article “Disclosing patient records” (Vol 20 No 3, September 2012), but essentially any request for records from a solicitor needs the consent of the patient. If the solicitor is acting on behalf of the patient, it is usually safe to assume the request is being made on the patient’s instructions – but a signed consent form is still preferred.

When responding to the request, it is vital that you:

  • Send a copy of the contemporaneous records
  • Do not modify the records in any way
  • Do not just send out a summary of the records.

The claim is made 

The claim officially begins with the issuing of a Letter of Demand. The flowchart (right) sets out the steps of the ensuing claim; this article will then discuss the process in more detail and describe how MPS can assist. The Letter of Demand sets out what the claimant wants, and gives a time frame in which to satisfy their demand. The letter also serves as a warning that you will be taken to court if you do not comply within said time frame. If you haven’t already informed MPS, you should do so upon receipt of a Letter of Demand.

If there is no reply to the Letter of Demand, the claimant will issue a Summons, which is a document that is stamped by the court and which lays out the details of the claim. The particulars of claim, which set out the allegations against a doctor, usually accompany the Summons.

Here it is absolutely vital that you inform MPS, if you haven’t yet been in touch – a Summons has a tight time frame within which to respond and if you fail to do so, the claimant can apply for a default judgment against you. If the court grants this application, this paves the way for a claim to be made against your property – the court can take some of your possessions to pay the claimant. This is called a Warrant of Execution. 

Settle or defend

There are two choices in how to respond to the Summons – settle the case out of court, or defend to trial. This is not a decision to be taken lightly; settle too easily and get a reputation as a soft touch or defend unnecessarily and accumulate costs. As a result MPS takes this decision very seriously and inevitably the claim is investigated. This means obtaining all the factual information, which will include a copy of the patient’s records and possibly an interview with the doctor concerned.

Once the facts have been ascertained, expert opinion on whether the case is defensible or not can be sought. If MPS is assisting you with the claim and a decision to settle is taken, we will contact the claimant’s legal team to agree on a settlement figure. If the case is being defended, the Notice of Intention to Defend – the form for which is on the rear of the Summons – is completed and submitted to the claimant’s lawyer.

Following this, a documentary exchange takes place between both parties – this phase is called the Pleadings. The legal documents involved are prepared according to the rules of court. During this stage it is still possible for both parties to agree on a settlement out of court. But if the case is heading to court, MPS will at this stage seek the opinion of an independent expert.

It is important to note that this expert is neither for or against the doctor in question; the expert is for the court, and is there to provide a reflective opinion on the specifics of the case. Sometimes this will mean the expert making criticisms of you, the defendant. However, it is much better to have this criticism given to your defence team at this stage than have it played out in open court. Your defence team will be better placed to prepare for the case if it has all the facts and potential vulnerabilities to hand.

A pre-trial meeting will be held, which brings together all experts involved in the case. Often this meeting also sees a final offer made to the claimant. 

At trial

The trial plays out in customary fashion, with both claimant and defendant lawyers presenting their side of the case. Evidence is presented and witnesses are called and they can be cross-examined. The ensuing judgment can then be followed by a review or appeal.

In South Africa, trials are normally split into liability and quantum. This means that in the case of the former, the onus is on the claimant to prove the negligence of you, the defendant. If they are successful in their claim, the next issue is to decide on the quantum of the claim – here the claimant must prove how much compensation the defendant is liable to pay to the claimant. 

Feeling the pressure

If all this sounds stressful, then that’s because it is – and in MPS’s experience the stress of going to trial is a common reason for doctors wishing to settle privately, avoiding the battleground of the courtroom. But whether a claim goes to trial or not, there can be no doubt that being in receipt of a clinical negligence claim is a highly stressful and anxious time for any doctor.

MPS has a counselling service that is available to members who have experienced an adverse incident or medicolegal issue, and are experiencing emotional or psychological difficulties. Access to the service is obtained through the individual’s medicolegal case handler. The service is available 24 hours a day, seven days a week, with face-to-face counselling sessions available at a convenient time and place – all funded by MPS.

In our next edition of Casebook, we will take a more detailed look at MPS’s recent experience in South Africa, including our own approach to handling a member’s case, and a comparison of the number of cases we settle with the number of those that we defend to trial.

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