Finding out that you are being sued by a patient or their relative can be very upsetting but it’s important to start with a sense of perspective. The MDU is notified of several thousand new claims a year but, on average, only 1-2% proceed to trial. The vast majority are successfully defended, 80% of medical claims fell into this category in early 2015. Many are discontinued in the face of a robust defence or because the claimant had no real case.
Nevertheless, a claim is an upsetting, confusing and distressing experience for any doctor, whatever the outcome so it’s worth having some idea of what to expect.
1 Don’t be tempted to respond
The first you are likely to know about a claim is when you receive a letter from the patient or their solicitor. A solicitor’s letter will usually set out the allegations, accompanied by the patient’s signed consent to release their records. This is called a letter before action, and it is essential that you do not write to the solicitors or contact the patient yourself to refute the allegations as this can make the claim more difficult to manage. Instead, tell your medical defence organisation (MDO) straight away, it will guide you throughout the process.
2 Get your paperwork in order
If you receive a letter before action, strict time limits apply for your MDO to respond on your behalf: a response and disclosure of the records is required within 40 days. It’s important to send your MDO a copy of all the correspondence from the patient’s solicitor, a signed note formally instructing them, your contact details, the patient’s records and a factual report of your involvement with the patient and details of any other clinicians involved. All correspondence related to the claim should be sent to your MDO. Keep your own copies in a separate file from the patient’s medical records.
3 Wait and see
After the first contact, many months or even years can pass before a claim proceeds. If the claim is not dropped at this point, you should receive a letter of claim. This sets out the summary of the case including the injury sustained and details of the financial losses incurred, such as loss of earnings and care needs. The MDU must respond within four months and the response will include a thorough review of all the facts and your comments on the events.
4 Consult the experts
In order to decide whether a case can be defended, the claim will be assessed. The MDU may ask an independent medical expert to give their objective opinion. They will be asked to comment on the allegations and clinical management and compare this with that of a reasonable doctor in the same sub-specialty and with the same experience at the time that the events occurred.
If, after obtaining expert opinion, the MDU considers a breach of duty has caused the patient avoidable loss or damage, they will discuss this with you and with your consent make an offer to settle the claim. If there is no evidence of a breach of duty or, if there was a breach, but it did not cause the patient any avoidable loss or damage, the MDU will deny liability on your behalf.
5 Prepare for trial
If the claim cannot be resolved informally then the claimant may begin legal proceedings. If that happens, you will be asked to prepare a formal witness statement with the help of a solicitor provided by your MDO. Even at this stage, claims may be discontinued. In the unlikely event that your case proceeds to trial then the defence team will prepare carefully, according to a timetable set by the court. Expert reports for the claimant and the defence are exchanged ahead of trial and experts meet to prepare a joint report and discuss the case. It is not unusual for claims to be discontinued at this stage.
If your case is one of the few to reach a court, the judgment may not be handed down for several weeks or even months after the trial. The burden of proof rests with the claimant who must satisfy the judge that on the balance of probabilities the doctor did breach his/her duty of care and that this breach caused harm to the claimant.
Dr Sharmala Moodley is deputy head of claims handling at the MDU