Summary

Litigation risk is present for claimants as well as defendants within clinical negligence cases. The defensibility of the medicine is the most important component of a case but there are many other aspects which must be considered in order to best protect the interests of MDU members. Whether the advice to a member is to defend, settle, or negotiate resolution on another basis, such as costs, this is always given in full consideration of the medical and legal aspects of the case.

Note:

The legal process is extremely complex and MDU claims handlers are expert at navigating the Pre-Action Protocol for the Resolution of Clinical Disputes and the Civil Procedure Rules, which are the framework within which clinical negligence claims are pursued. The claims handling team is always on hand to explain the legal processes and complexities to members, including the litigation risks in an individual case.

Clinical facts are not all that comes under scrutiny when a patient brings a claim. In seeking to robustly defend members, the MDU claims handling team must consider the legal as well as the medical context of the claim. It is the legal aspects that can expose vulnerabilities in the case and, potentially, lead to a case being settled or lost in court. This is called litigation risk.

Litigation risk can arise at many points during the claims process and affect the way a case is handled in a variety of ways.

Factual disputes

Recollection of the events in a case may differ between claimant and doctor, leading to a factual dispute which cannot be resolved by the records or medical experts. Factual disputes can only be truly resolved by a trial judge, but the vulnerabilities that they present must be recognised much earlier.

Strength of witnesses to fact

As a claim proceeds, one of the most effective ways of assessing the strength of the case is to have a meeting with the solicitor or barrister representing the doctor. The legal team may play 'devil's advocate' with the doctor, asking them to see the case from the patient's / judge's point of view. It is important for the doctor and the legal team to know what to expect in terms of the doctor's ability to withstand cross examination should the case proceed to trial. The meeting allows the legal team to assess how the doctor would perform as a witness particularly where there may be weaknesses in the case that could be exploited by the opposing party.

Supportive expert opinion

A judge has to weigh up the expert evidence that is put in front of him or her to determine whether it stands up to logical analysis. In essence this means that one side's evidence will be preferred to another.  It is important for each party to assess their experts' ability to withstand cross examination at each stage of the legal process. An expert may change their view if there are developments in the case and as evidence is disclosed during legal proceedings.

Legal precedents

While each case is unique, there may be legal precedents set in previous similar cases. These may direct the possible outcome and must be carefully taken into consideration when balancing the strengths and weaknesses of a case.

Costs rules

Tactical steps may be employed in litigation in relation to legal costs. In the past, the simple rule was that the losing party would pay the other's costs. However, legal costs reforms that came into force in April 2013 introduced significant changes. There are circumstances where 'costs shifting' applies, requiring a defendant to pay their own legal costs at trial even if they successfully defend and win their case. On occasion, it is in the interests of both claimant and defendant to draw matters to a conclusion with each party agreeing to bear their own legal costs.

Making tactical offers

Either side can make an offer of settlement at any stage of the legal process. There are costs implications if such an offer is neither accepted nor rejected and the claim later settles for a higher amount. If a doctor is considered to have breached their duty of care to the patient, an award for pain, suffering and loss of amenity is likely to be awarded even if the patient has suffered no other significant damage. Any offers need to be carefully considered by the legal team. The MDU usually carries out a risk-benefit analysis in such circumstances.

What can you do?

Litigation risk will always be present to a degree, but there are some simple considerations for clinicians to bear in mind in day-to-day practice that may stand them in good stead if a case is brought against them. Primarily, these involve accurate record keeping, both clinical and non-clinical, which may later mitigate in the event of a factual dispute.

• Accurate record keeping remains paramount and the MDU has long emphasised its importance. Clinicians are often surprised at the level of scrutiny applied to records when a clinical negligence claim is pursued. Doctors who have experienced a claim often remark that the process focused their attention on their approach to record keeping. The details and nuances of a short entry in the record may be untangled with painstaking detail. A claimant and their legal team may infer a huge amount about a consultation from the subtleties implied within the record, or details which they may allege are missing or inadequate. It is important to avoid ambiguity in medical abbreviations and also in the general content of your clinical note. Read it back - could it be interpreted in more than one way? This is particularly relevant to safety netting advice, which is often the subject of disagreement during litigation.
• Legibility is important. Illegible records may be used to infer a careless or rushed approach.
• To avoid discrepancies in the sequence of events, ensure that you date and time your clinical records carefully. GP consultation software does this automatically, but clinicians working in other specialties and in out of hours practice may need to do this manually. Review your clinical note. Can you tell when, where and with whom the consultation took place?
• The availability of appointments, and telephone encounters with administrative staff, often feature in a claim. Where practical, it is helpful to keep records of telephone conversations about consultations and appointment histories. This can assist in dispelling any false recollections, should a claim be pursued at a later date.