If a clinical negligence claim is made against you, the legal process will follow a very clearly defined path. Dr Gerard Panting of the MPS explains what to expect


   

The prospect of a clinical negligence claim is not one many doctors wish to dwell on. However, it is inevitable that mistakes will be made in the course of a career, and if a patient suffers harm as a result of negligence, he or she is entitled to claim compensation.

Legal cases have a reputation for slow progress, which to some extent is well deserved, but since the introduction of the new Civil Procedure Rules in England and Wales in April 1999, claims can proceed with alarming pace. Putting correspondence to one side to be dealt with later is a poor start to the defenceÍs campaign.

The Pre-action Protocol

Claims against doctors should initially be dealt with under the Pre-action Protocol. The protocol is designed to make all necessary information available to both parties so that the claim can be investigated without delay. It also places commitments on both claimants and defendants before any formal legal steps are taken. The main steps in the protocol are set out in Figure 1, below.

Figure 1: Main steps in the Pre-action Protocol

If, following investigation, the claimantÍs solicitor believes there is a case, a detailed letter of claim is dispatched to the doctor. This must contain a clear summary of the facts, the main allegations of negligence, the injuries suffered by the patient including some indication of current condition and prognosis where appropriate, and an outline of the financial loss.

The GP, or in practice the GPÍs protection organisation, should acknowledge receipt of the letter of claim within 14 days and submit a substantive response within 3 months.

That response will, in general, state whether or not the chronology of events set out by the claimant is correct and respond to the allegations of negligence. It may also comment on whether the injuries complained of could have been caused by the alleged negligence.

Any admissions made at this stage are binding and if the claim is to be denied, the response must address each allegation of negligence set out in the letter of claim. If the claimant has made an offer to settle, a counter-offer may also be made at this stage.

We now have 3 yearsÍ experience of using the Pre-action Protocol. Overall, it has proved successful in reducing the number of claims that go forward to formal legal proceedings, allowing early settlement of meritorious claims and preventing unmeritorious claims from being pursued. However, in complex cases, particularly those dealing with profound injury, it may be very difficult to determine whether or not the injuries resulted from the alleged negligence.

In such cases the 3-month time period within the protocol is insufficient to allow a full investigation of the facts and full expert advice before providing a substantive response. In these cases and others where there is a dispute over the 'acts or a straightforward disagreement over the merit of the claim, formal legal proceedings are likely to follow.

Formal legal proceedings

One of the many changes introduced in April 1999 was more user-friendly terminology. In England and Wales, we no longer refer to plaintiffs but to claimants. Writs have been replaced by claim forms and Latin tags have been abandoned.

If it has not been possible to resolve a dispute using the Pre-action Protocol, the claimant must issue a claim form and serve the Particulars of Claim setting out the precise allegations against the defendant, plus a medical report verifying the injuries caused and a Schedule of Damages detailing any past or future expenses for which the claimant seeks compensation.

After service of the Particulars of Claim, the defendant doctor has only 28 days in which to reply, setting out a detailed defence. This must be more than a straightforward denial of the allegations. What is required is a blow by blow riposte to each aspect of the claim which is not admitted – a tall order in just 4 weeks, but most of the preparation should have been done during the Pre-action Protocol phase. Failure to meet the deadline can result in judgement by default being given against the defendant.

Once the defence to the Particulars of Claim has been served, solicitors for the claimant and defendant are required to complete an allocation questionnaire, which is a court document used to identify how the claim should be managed by the court. Thereafter, the court sets out directions for the management of the claim and sets a timetable for bringing the action to trial.

The main aim in this process is to ensure that the element of surprise is taken out of litigation and that each party has the opportunity to examine the merits of their own case in detail as early as possible. With this in mind, both claimant and defendant are required to disclose all documents relevant to their case, even those that adversely affect it.

Furthermore, each party has a duty to search for documents and provide a list of all those which are to be disclosed to the opposing side. Defendant GPs have to sign a disclosure statement which sets out the extent of the search that has been made and certifies that he or she has complied with the duty to disclose.

Expert evidence

Clinical negligence cases depend very heavily on expert evidence. One of the key documents is the doctorÍs statement, a detailed factual account of all relevant events that must include a statement of truth. Expert reports on the merits of the claim will then be obtained and exchanged with the other side.

At this stage, it is usual to have a conference with the barrister who will be representing the doctor should the case proceed to trial. The purpose of the conference, at which the defendant doctor, experts, solicitors and protection society representatives will all be present, is to test the strengths and weaknesses of the defence and decide whether it is appropriate to proceed to trial.

There is a common misconception that experts are instructed to provide opinions for one side or the other. In the sense that the letter of instruction will have come from a solicitor representing the claimant or defendant this is, of course, true. However, the expertÍs duty is to the court and his or her analysis of the issues must be impartial.

The Civil Procedure Rules state that it is the duty of an expert to help the court on matters within his or her expertise and that this duty overrides any obligation to the person from whom he or she has received instructions or by whom he or she is paid.

Cases that go to trial

Appearing in court is a daunting prospect but the anticipation is usually worse than reality.

Only a small minority of claims culminate in a trial. Both claimant and defendant are represented by lawyers, usually at least one solicitor and one barrister. In complex cases, the legal team may be considerably larger. There is no jury in clinical negligence cases so it is up to the judge to resolve any differences between the parties on the balance of probabilities.

The claimantÍs case is put first with the majority of witnessesÍ evidence being given in the form of a witness statement on which that individual is cross-examined by the barrister for the defendant. The defence follows in a similar manner.

At the conclusion of the trial, the claimantÍs and defendantÍs barristers make closing statements, summarising the evidence that has been heard. It is then up to the judge to decide the case.

Judgment may be given straightaway, which is comparatively rare in clinical negligence cases or may be reserved - in other words delayed - for weeks or months.

Conclusion

Litigation in England and Wales is now a much speedier process than before. Cases are decided on the evidence, not the facts, and in medical cases that means medical records. Without good notes, defensible cases may be lost for want of evidence.

Guidelines in Practice, September 2002, Volume 5(9)
© 2002 MGP Ltd
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