At the MDU we understand what a difficult and upsetting time a claim can be. Knowledge of what to expect during the process can be very helpful. In this feature, Dr Sharmala Moodley, MDU deputy head of claims, looks at the pre-trial stages in the life of a claim as well as trials themselves, the appeals process and how compensation and costs are determined.
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% get to court. Around 70% are successfully defended. Many are discontinued in the face of a robust defence, or because the claimant had no real case. So if a claim arrives, it can be reassuring to know that the changes of ending up at trial are really very slim.
Nonetheless, a claim is an upsetting, confusing and distressing experience for any doctor, whatever the outcome.
In the NHS, claims are made against the Trust, but in the independent sector, claims are brought against individual, named doctors. To make a successful claim for clinical negligence, the claimant must establish three things:
- that the doctor owed them a duty of care
- that the doctor breached that duty according to the standard of care expected of a doctor with similar skills, training and experience
- and that the patient suffered harm as a result.
If they can prove all of this, the claimant may be entitled to compensation based on the severity of the harm they suffered and its impact on their life.
The earliest indication that a claim is on its way is usually a letter from a patient's solicitor. This may outline the allegations and request disclosure of all medical records (including x-rays, test results, reports on adverse incidents and reports compiled on a named patient). This should be accompanied by the patient's signed consent.
This is a letter before action, and is the first stage of the pre-action protocol. The letter should be accompanied by the patient's signed consent to the release of their records. A response and disclosure of the records is required within one month.
If you receive a letter before action, it is essential that you do not write to the solicitors or contact the patient yourself to refute the allegations. This can make the claim more difficult to manage. Instead, you should inform your medical defence organisation straight away so that it can manage this process on your behalf.
Independent consultants may be at a potential disadvantage if the letter before action is sent to their hospital. For example, it is possible that records may be disclosed by a hospital without the doctor's knowledge, particularly if he or she has moved on or holds clinics in different locations. Fortunately, this does not happen often; normally you would hear about the claim when the hospital is notified and in particular when you are asked by the hospital for the patient's personal records.
However, this does demonstrate why it's a good idea for independent doctors to inform their defence organisation if something goes wrong with treatment which they believe might result in a claim.
The MDU asks members who notify us of a potential claim to send in:
- A copy of correspondence from the claimant's solicitors
- A signed note formally instructing us to assist them
- The address for future correspondence
- The records, either the originals (by recorded delivery) or clear and complete photocopies
- A factual report of their involvement with the patient and the details of other clinicians involved. (This is not designed for disclosure to the claimant's solicitors)
MDU members are then asked to forward any documents they receive from the claimants' solicitors straight away, keeping a copy for their own file, which should be kept separately from the patient's clinical records in accordance with GMC guidance.
After the first intimation of claim, there may be a long period (often months and sometimes years) when everything goes quiet. In our experience many potential claims are dropped during this time. If the claimant's solicitor, or a medical expert they have engaged to examine the medical facts, believes that the claimant has a case, he will send a letter of claim.
A letter of claim should clearly set out:
- A summary of the case
- The allegations
- A summary of the injury sustained
- Details of the financial losses incurred, such as loss of earning, care needs, etc.
An acknowledgement of the letter is required within 14 days, and a full, reasoned response within four months. Preparation of the response is extensive and will include a thorough review all the facts, including your own comments on the course of events. Independent, expert medical advice from highly respected clinicians may be obtained at this stage.
Experts are doctors with current or recent experience of a particular specialty and of medico-legal work who can advise on a) the standard of care that it is reasonable to expect from the defendant doctor, and b) causation - whether the alleged negligence can be established to have caused the harm.
At the end of the investigation, we have three options:
- Deny the claim
- Admit part/s of the claim, or
- Make an offer to settle (this can occur with or without admissions being made).
The MDU never settles a claim without the doctor's consent.
If the claim cannot be resolved informally, it is then open to the claimant to begin formal legal proceedings. To do so, they must serve a claim form which is issued by the court.
For competent adult patients, proceedings must begin within three years of the incident or three years from when the patient became aware there were grounds to make a claim. Otherwise, the patient will have to persuade the court there is a good reason for the delay.
For children, the limitation period only begins to run when they reach 18, and there is no time limit on claims for patients who are suffering from a mental disorder or disability - for example, patients who sustain brain damage.
When we receive notice that a claim form is to be served, the MDU will normally instruct a solicitor from our in-house legal department or an external firm of clinical negligence specialists.
The particulars of claim will either be sent with the claim form or follow within 14 days. This document details the claimant's case and the damages claimed, usually with an expert's report on the patient's condition and prognosis attached.
Occasionally, the claimant's solicitors will serve proceedings on you in person, rather than your medical defence organisation. If this happens, it's important to get documents to your defence organisation immediately as an acknowledgement must be sent within just 14 days, and a detailed response to the court in only 28 days. In practice, most cases need more time than this, but this is currently what the civil procedure rules demand.
The court now allocates the claim to one of three 'tracks', depending on the complexity and the value of the case: small claims, a fast-track and the multi-track. Nearly all clinical negligence claims are allocated to the multi-track.
From now on, the case runs according to a strict timetable imposed by the court, including dates for exchange of witness statements, expert advice and a likely date of trial. Complex clinical negligence cases can take up to two years to be heard in court from the time that proceedings are served.
A judge reviews the progress of both sides at a case management conference attended by both sides and ensures the issues have been narrowed down as far as possible. Importantly, the judge also looks at alternative ways of resolving the dispute.
The doctor's witness statement is the cornerstone of the defence case so it needs to be prepared with care. Your solicitor will take detailed instructions from you and carefully prepare the statement, for your review. You are also obliged to sign a statement of truth which forms part of the document.
A common misconception is that experts instructed by the defence are there to plead the defence case but in fact, an expert's duty is to advise the court. They must give their advice objectively, in a written report. If their report is submitted in evidence, the expert may be asked to give oral evidence should the case reach trial.
The reports of experts for both the claimant and the defence are exchanged. Either side may put written questions to the other side about their expert report. Experts on both sides are also required by the court to meet to prepare a joint statement. They discuss the case to see if some or most of the issues can be agreed prior to trial. The purpose is to narrow down the issues to save on time and costs.
If expert evidence is persuasive, it may be that the claim is discontinued by the claimant - and a high proportion of claims are concluded in this way.
Trials
It typically takes up to three years from the start of a claim before the 1-2% of cases which go to trial actually reach a courtroom. While a rare event, it's an understandably daunting prospect for doctors: strange surroundings, unfamiliar etiquette, and the fear of having your competence called into question by lawyers in a public arena.
However, knowing what to expect, being prepared and giving straightforward responses should result in a trouble-free court appearance and members can rely on the support of their MDU defence team throughout.
Clinical negligence trials are heard by a judge, sitting alone. Most are concluded within three days but some may last a week or more.
In complex cases, trials can be split so that there are separate hearings to determine liability and then damages (quantum). Where liability has been admitted, there may just be a quantum trial to decide the extent of the damages. Practitioners themselves are usually only involved in the trial to determine liability.
In some complicated cases, such as those that involve children and brain damage, it can take many years for cases to reach trial and for a decision on liability to be reached and many more to determine damages.
It may seem obvious but when attending court, ensure you know where you are going, where you can park and so on - the last thing you want is to be late, or arrive feeling stressed.
You will usually meet up with your solicitor and barrister (counsel) each morning before the court session begins. However you will not be able to communicate with them while you are giving evidence, for example during lunch breaks or overnight. Your legal team will be able to advise you about points of court etiquette such as the correct way to address the judge ('your honour' in the county court and 'my lord/lady' in the high court). The court usher can help you with practical matters like where to get refreshments.
Occasionally in particularly high-profile cases, such as those where the damages are likely to be significant, doctors may have to run the gauntlet of press reporters and cameras when they arrive at court. This usually only lasts for the first day but it can exacerbate the stress for defendants.
The MDU's advice in this situation is to try not to react, push away or avoid the cameras as this can make you appear unprofessional or as if you have something to hide. The best approach is to keep moving and in these cases, a member of the MDU or your appointed solicitor will be there to accompany you. If you are approached by the media for comment about a case during a trial, the best approach is to explain that your duty of patient confidentiality prevents you from commenting.
Remember that your duty of confidentiality to the patient continues even if they have spoken to the press. Depending on the outcome, you may want to make a brief statement at the end of a trial but your medical defence organisation can advise you on this when the time comes.
The claimant's barrister is first to be heard, giving an opening statement setting out their case. Counsel for the claimant then calls witnesses for examination, and will question them based on their written statements. The claimant is likely to give evidence, if in a position to do so, and this evidence will often be central to the case.
A patient's first-hand account of a consultation can often be held to carry more weight than a doctor's explanation of his or her 'usual practice', a point which highlights the value of clear and comprehensive medical records when defending a claim. After examination by the claimant's barrister, each witness can then be cross-examined by counsel for the defence who will test their evidence and challenge them on contentious points.
The defence case follows the same format of examination and cross-examination. As the doctor at the centre of the allegations, you will almost certainly be called to give evidence in your own defence during a liability trial. You will first be asked to take a religious oath or to affirm. When giving evidence, the key is to listen carefully to the questions and give straightforward answers - often a simple 'yes' or 'no' will suffice. The judge will also very often seek to clarify a witness' evidence by asking their own questions. When questioning is complete, the judge will invite you to stand down from the witness box.
During the trial, each side will call on expert witnesses to opine on the following:
- whether the standard of care provided was consistent with that of a reasonable practitioner of similar training and experience
- causation - whether the claimant has suffered harm and whether it could have been avoided
- the claimant's current condition and prognosis.
In some cases there is agreement between the experts instructed by both sides on specific issues. For example, the experts may agree that whether a doctor was in breach of his/her duty of care depends upon whether the doctor's or the claimant's factual account of a consultation is preferred by the judge. As we emphasised in the last article, an expert witness's primary duty is to use their knowledge and experience to assist the court rather than to 'act' for one side or another.
Finally, each barrister then gives a closing address (first the defence and then the claimant) before the judge retires to consider his or her decision.
Judgments are often reserved, unless the case is quite straightforward, and can be handed down anything from a week to six months after the trial. The written judgment is sent to the claimant's and defence teams who are given a date when it will be formally handed down.
The judgment comprises the judge's findings of fact and conclusions, on all relevant aspects of the case, including quantum if it is not a split trial on liability only. The burden of proof rests with the claimant who must satisfy the judge that on the balance of probabilities the doctor did breach their duty of care and that the breach of duty caused harm to the claimant.
In the UK, damages are not intended to be punitive but compensatory and should cover what is necessary to put the claimant in the position he/she would have been in had the negligence not occurred.
There are two major elements to damages awards. General damages are for pain, suffering and loss of amenity arising from the injury or illness. The claimant is also entitled to an award of damages in respect of the financial consequences of the injury or illness which can include the cost of care, loss of earnings, loss of pension, the cost of special equipment and adaptations required in the home.
In circumstances where a claimant has suffered a serious injury or illness, such as in the case of a brain damaged child, a large proportion of any award will need to provide funds for future care needs for the patient's projected life span. In such cases the annual cost of care often exceeds £100,000 resulting in substantial seven figure awards/settlements.
More often than not, the final settlement figure is a matter of negotiation between the lawyers for the claimant and the defendant but cases do go to trial for a judge to determine the level of award. There are guidelines in relation to general damages and precedents set by earlier cases to assist the parties or in the case of a trial, the judge, in assessing the level of damages.
It is often necessary to commission experts to examine the claimant and to report on his/her condition and future prognosis and also to instruct non-medical experts such as experts in care or accommodation. Damages are generally paid in a single lump sum but the courts can also make periodical payment orders which allow for regular payments over the patient's life.
In addition, the loser has to pay the costs of litigation including costs of legal advisers for both sides and the fee for both sides' experts. In the case of conditional fee arrangements (no win no fee cases), claimants' solicitors are entitled to charge a success fee which may be up to 100% of their base costs. In many cases, this means that the legal costs are higher than the compensation awarded to the claimant. For example, the MDU recently settled a claim where a claimant was paid damages of £8,000 but their lawyer's costs totalled £62,000.
If a party wishes to appeal a judgment, they first need the permission of the court. An oral request for permission can be made when judgment is handed down but more often than not such requests are denied. The party wishing to appeal then has 21 days in which to make a written request for permission to appeal.
Appeals are normally made if either side thinks that the judge has misinterpreted the law or the expert evidence. Appeals against a judge's findings of fact are generally not permitted. Appeals from a judgment in the high court are heard by the civil division of the court of appeal at the Royal Courts of Justice in London by three to five judges, depending on their complexity. Your legal team will be able to advise you whether there are legal grounds for an appeal. The MDU will seek your consent to this if we think there is a realistic prospect of success.
Since 2009, final appeals have been made to the Supreme Court, the highest court in the UK.
The MDU has not yet had cause to appeal to the Supreme Court but we have previously been involved in appeals to its predecessor, the House of Lords where important legal principles were at stake.
In 2005, for example, The MDU successfully resisted a claimant's appeal to the House of Lords on the issue of causation in the case of Gregg v Scott1. In this landmark case, a claimant sued his GP because of a delay in the diagnosis of non-Hodgkin's lymphoma. The statistical evidence presented to the court suggested that, even with earlier treatment the patient's chance of surviving more than 10 years would still have been only 42% but the claimant's team argued he was entitled to be compensated for the 'loss of a chance' of a better outcome. The claimant's appeal was eventually dismissed by a 3:2 majority.
This was an important case for the MDU to defend because had the appeal succeeded, there would have been a flood of claims by claimants alleging loss of a chance even if a delay in diagnosis or treatment probably made no difference to the outcome so the case had implications not only for the MDU but also the NHS Litigation Authority and other defence organisations.
As this and the previous article in our series show, clinical negligence is a highly specialised and complex area of law and certainly not something that doctors would ever want to face alone.
Then there is the potentially enormous expense of defending your reputation in court - instructing solicitors, barristers and expert witnesses as well as the crippling cost of paying compensation and the claimants' costs in the event of an unfavourable outcome.Claimants are increasingly instructing solicitors specialising in clinical negligence work so access to your own specialist advice and support is essential from day one. The good news is that for most doctors, that day never arrives but if it does, the MDU provides its members with the specialist support and advice that they need.
Further Information
1.1Gregg v Scott [2005] UKHL 2.
This page was correct at publication on 12/01/2012. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.