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Criminal case dismissed thanks to Medical Protection discretion

Post date: 20/06/2022 | Time to read article: 2 mins

The information within this article was correct at the time of publishing. Last updated 23/06/2022

The following case study is an example of how we can sometimes offer our expertise, knowledge and discretionary protection in unusual cases. Each case is unique and so is reviewed on an individual basis on whether our discretionary model can support it.
A criminal investigation has been dismissed against a Medical Protection member, in a recent case that also underlined the value of our discretionary indemnity.

Due to the circumstances of the case, and despite the care being provided in the UK, an investigation into our member’s clinical actions, Dr C, was instigated overseas. Medical Protection does not normally assist with legal processes in countries where we do not operate – unless members are also indemnified in that country – but we used our discretion to assist Dr C in what was an unusual case.

The case

The case involved an alleged delay in diagnosis of a pulmonary embolus in patient Ms L, who collapsed and died four days after being seen by Dr C.

The outcome

A clinical negligence claim was brought by Ms L’s widower against the NHS Trust involved, which was settled by the Trust. Dr C was asked to produce a report for an internal hospital enquiry, and Medical Protection was able to assist with this. Some systemic failings were identified but nothing significant involving Dr C.

Ms L, however, was a foreign national. Two years later, a relative made a complaint to the court in their country of origin, which prompted a criminal investigation under law that approximates to the UK’s gross negligence manslaughter, although the bar to criticism is much lower.

Dr C contacted Medical Protection and we exercised discretion to assist.

Case dismissed

Dr C was interviewed by the investigator and a conclusion was imminent, but on the advice of a local advocate working for Medical Protection an appeal was lodged, partly to ensure the case would be heard where there is more expertise. The appeal judge then ruled that the case should never have been investigated but, as it had, should now be dismissed. He ruled that it failed to meet the threshold for prosecution against Dr C, because there had been multiple factors contributory to the death of Ms L.

Dr Jonathan Bernstein, the medicolegal adviser at Medical Protection who handled the case, said: “This was an excellent outcome for our member Dr C, and a decision that I understand is one rarely given in that jurisdiction after such a long investigation. It has been a difficult and stressful few years for Dr C, but we stood by her throughout and provided reassurance and support.

“The case also highlights the value of Medical Protection’s discretionary indemnity. We were absolutely determined to continue fighting for Dr C and through the flexibility of our discretionary approach, we were able to do just that.”

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