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Everything you need to know about negligence claims

MPS Claims Manager Ashley Dee, who is based in our Edinburgh office, explains the claims process step-by-step and what it means for you

The chances are, at some point in your medical career, you will become involved in a clinical negligence claim. Whether you’re the treating doctor whose care is subject to allegations/criticisms, or a witness in an ongoing claim, the increasing frequency of claims is part of the current climate that doctors work in.

However, it’s not all doom and gloom, and junior doctors starting out in their career often have some misconceptions about what being involved in a claim entails and the implications.

Who pays?

Well, rest assured, it’s not you.

  • As an FY1/2 you are obliged to work in an approved practice setting. This will usually mean you will be covered by NHS indemnity. Put simply, it is the NHS organisation that is sued, as opposed to any individual/named practitioners, and the NHS that will be responsible for any compensation payment that may be awarded by the court or any out of court settlement that might be agreed.
  • The position is different for claims against GPs and private practitioners, who would be sued personally and would rely on support from MPS.
  • FY1/2s on placement in a GP practice will still be covered by NHS indemnity.

What is the law/legal test for negligence?

The patient has to prove:

a) That they are owed a duty of care: it is taken as read that a doctor owes his/her patient a duty of care; and

b) That there was a breach of that duty: in other words, that the standard of care fell below that to be expected from a responsible body of medical practitioners; and

c) Causation: that, on the balance of probabilities (ie, it is more likely than not), the failings in the standard of care identified, directly caused or materially contributed to the patient’s injuries/outcome.

The onus is on the patient to establish breach and causation to the civil standard of proof, which is the balance of probabilities, and not to the criminal standard (beyond reasonable doubt). The test is subtly different in Scotland.

How is a claim started?

More often than not, a hospital or general practice is notified of a claim being investigated when the patient (usually through their solicitor) requests their medical records and advises it is in contemplation of a claim. There may also have been a complaint made before notice of a claim is received. Hospitals usually have a complaints department. General practice complaints tend to be dealt with by the practice manager or a nominated complaints partner.

Once the patient/their solicitors have investigated the claim, there is a protocol by which they should provide a Letter of Claim, setting out the facts and the allegations of breach and causation. This triggers a four-month deadline in which the NHS organisation needs to provide a Letter of Response. The letter must set out any facts that are disputed and state whether the allegations are admitted or denied. Where they are denied, the hospital must explain why. This protocol provides an opportunity to resolve claims without the need to issue legal proceedings.

The patient should go through the above steps before starting court proceedings, but that isn’t always the case. There is no formal protocol in Scotland for notification of claims prior to commencing court proceedings.

How long does a patient have to claim?

The time period within which a claim must be brought is known as the limitation period. Court proceedings should be issued within three years (in Scotland the time limit will be increased to five years), running from:

  • The date of the negligent event; or
  • The date the patient became aware (or the date a court subsequently deems they should have been aware) they had suffered a significant injury attributable to the act they believe to have been negligent (referred to as date of knowledge); whichever is the latest.

There are some important exceptions to the above:

  • The courts have discretion to allow claims to be brought outside the three-year window
  • The three-year period does not begin to run until a child’s 18th birthday
  • In fatal claims, the three-year period runs from the patient’s date of death unless the three-year period expired prior to death; and
  • The three-year period does not begin to run for those who do not have capacity. Some patients may have fluctuating capacity and time will begin to run when capacity returns.

Who manages the claim?

Most NHS organisations have their own claims/legal department but ultimately the claim will be referred to an agency to manage the claim on their behalf. These organisations differ in each of the jurisdictions in the UK. The NHS Litigation Authority (NHSLA) in England, the NHS Wales Shared Services Partnership, the Central Legal Office (CLO) in Scotland, and the Directorate of Legal Services (DLS) in Northern Ireland.

The appointed claims handlers may investigate the matter internally or may instruct an external firm of solicitors. The NHS will incur the costs of legal representation and advice.

What is your role? How is the claim investigated?

If you were the main treating doctor, at the outset it is likely that you will be asked to review the patient’s records and provide a statement commenting on your treatment and involvement. If you were only involved in a peripheral part of the care being reviewed, then this may well be the end of your involvement.

Once all the medical records are available, independent expert evidence will be obtained to comment on the standard of care afforded to the patient. For example, if the case centres on an alleged failure by the emergency department to diagnose a fractured wrist, then a report will be obtained from an expert in emergency medicine. A report may then be obtained from an orthopaedic surgeon to comment on what, if any, difference any failure to diagnose has made to the patient’s outcome, and what their current condition and prognosis is.

Deciding whether to defend or settle claims are largely governed by the expert evidence. Experts, whilst instructed and paid by either the claimant or the defendant, are independent and their report is prepared to assist the court. Once court proceedings are issued there are various procedural timescales that the lawyers will deal with.

Will I have to appear in court?

Most claims are discontinued or settled by negotiation ahead of the trial, or a ‘proof’ in Scotland. It is therefore highly unlikely that you will need to attend court to give evidence, but it cannot be ruled out.

Giving evidence in court is (usually) not as dramatic as an episode of The Good Wife might have you believe. TV courtroom dramas are usually about as realistic as Holby City is to NHS medical practice.

If you are required to attend court in relation to an NHS claim, you will be there as a witness of fact to be questioned by a barrister instructed by the NHS’s defence team first, before being questioned by a barrister for the patient’s legal team. The solicitors representing the NHS will talk you through the process and will usually show you the court room and explain the set up in advance.

For GPs or private practitioners, MPS’s legal team will assist and support members through this process. MPS successfully defends 76% of medical claims and potential claims.

Trials are usually held in public and the media can be present. There are no jury trials in civil claims in England, Wales or Northern Ireland. They do exist in Scotland but are rarely used in medical negligence cases.

What impact will a claim have?

Most claims are resolved without any further implications for the doctor. However, it is possible that a claim could trigger other investigations. Take the example of the death of a patient: the death could be referred to the Coroner or Procurator Fiscal for consideration of whether an inquest or Fatal Accident Inquiry is required (there are no inquests in Scotland, but there are Fatal Accident Inquiries convened by a Sheriff) and there could be a criminal/police investigation, depending on the circumstances of the death.

The family could also make a complaint to the hospital, which could be referred to the Parliamentary and Health Service Ombudsman in England; the Scottish Public Services Ombudsman; the Public Services Ombudsman for Wales; or the Commissioner for Complaints In Northern Ireland (known as the NI Ombudsman).

Then there could be a referral to the General Medical Council, either by the family, the hospital or because the GMC have seen details of the trial in the press. In these circumstances it is important to seek advice from your medical defence organisation as early as possible.

Being subject to a claim can be stressful and worrying, but the claims itself will not present any financial risk for you personally. If you are worried or concerned about a claim contact MPS sooner rather than later.

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