As an organisation run and staffed by doctors, we understand how difficult it can be to receive a claim. Being sued is obviously an upsetting experience, but knowing what to expect during the process can help to ease your anxieties and give you a sense of perspective, helping you handle the situation if and as it progresses.
In this article, we explain what happens when you first receive a claim and how to respond, as well as the process of investigations and settlements.
Pre-litigation process
When you're first informed of a claim, it's important to start with a sense of perspective. We're notified of hundreds of new claims each year but, on average, less than 1% go to trial.
Over 70% are successfully defended and many are discontinued in the face of a robust defence, or because the claimant had no real case - so it can be reassuring to know that the chances of ending up at trial are 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 if a hospital is the defendant. If the claim is against a GP providing NHS care and the date of the incident is after 1 April 2019, then NHS Resolution will deal with the majority of cases. If the incident took place before 1 April 2019 and relates to GP care, then the MDU should be informed of any claims against MDU members.
In the independent sector, claims are brought against individual, named doctors, and their medical defence organisation should be informed.
To make a successful claim for clinical negligence, the claimant must establish three things:
- the doctor owed them a duty of care
- the doctor breached that duty according to the standard of care expected of a doctor with similar skills, training and experience
- and 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.
Before a case is litigated - in other words, before court proceedings are issued - the court expects all parties to follow a set process that helps guide those involved in the pre-action process, and attempts to resolve disputes before litigation is necessary. This is called the Pre-Action Protocol for the Resolution of Clinical Disputes (PAP).
Even if a resolution cannot be reached, ideally the PAP process will have assisted in narrowing issues between both parties, making the litigation more focused.
Pre-action process
Stage one: letter before action
The earliest indication that a claim is on its way is usually a letter from a patient's solicitor. This may outline the allegations (often termed a letter of notification) and/or request disclosure of all medical records (including any X-rays, test results, complaint correspondence, adverse incident reports and reports compiled on a named patient).
A request for disclosure of medical records should be accompanied by the patient's signed consent. Disclosure of the records is required within one month. This is the first stage of the PAP.
If you receive a request for medical records from a solicitor instructed by a patient, or a letter of notification, it's essential that you do not write to the solicitor or contact the patient yourself to refute any allegations that may be made. This can make the claim more difficult to manage. Instead, you should inform your defence organisation straight away so that it can manage this process on your behalf.
Independent consultants may be at a potential disadvantage if the initial letter is sent to the private hospital. For example, it's 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. But this does demonstrate why it's a good idea for independent doctors to inform their defence organisation if something goes wrong with treatment that they believe might result in a claim.
We ask members who notify us of a potential claim to email in:
- a copy of correspondence from the claimant's solicitors
- a signed note formally instructing us to assist them
- an email 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 (this is not designed for disclosure to the claimant's solicitors).
MDU members are then asked to forward any further documents they receive from the claimant's 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.
Members can contact us and find out more here.
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Stage two: letter of claim
After the first intimation of a claim, there may be a long period (often months, sometimes years) when everything goes quiet.
In our experience, many potential claims are dropped during this time. If the claimant's solicitor, or if they've engaged a medical expert to examine the medical facts, believes that the claimant has a case, the solicitor 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.
The experts that the MDU instructs are doctors with current or recent experience of a particular specialty and medico-legal work who can advise on the standard of care that it is reasonable to expect from the defendant doctor, and causation - whether the alleged negligence can be established to have caused the harm.
We're notified of hundreds of new claims each year but, on average, less than 1% go to trial.
Stage three: the response
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 a claim is defended, we will serve a letter of response on behalf of the doctor setting out the reasons why we disagree with the allegations made. It will then be for the claimant and their solicitor to consider the response and decide whether to pursue the matter further.
If it's decided the claim cannot be successfully defended and a settlement offer is made, hopefully settlement negotiations can then be concluded at this pre-action stage.
Further advice
For more information, read our Introduction to clinical negligence and related guides on our main website.
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Dr Claire Wratten
Dr Claire Wratten is a senior medical claims handler and claims team manager, who joined the MDU in 2006 from a background in nephrology and general medicine.
See more by Dr Claire Wratten
Lee Lewis
Lee Lewis is a senior claims handler working in the high value claims team. Lee joined the MDU in 2004 from a background in the insurance industry.
See more by Lee Lewis