No matter how professional and careful you are sometimes mistakes can happen. It is important to be prepared for any possible legal problems and to be aware of how to deal with it. If you find yourself in the unfortunate position of being sued you should seek advice immediately.
The first sign that you are being sued is a letter from a client’s solicitor. This can be very upsetting and it’s natural to feel angry and defensive about a claim. Your insurance policy will have a medico-legal service included providing legal advice at any time of the day or night. You should not respond to any communication until you have contacted this number.
Clinical negligence can cover a number of actions including:
- Errors caused by oversights or minor mistakes
- Incorrect diagnosis
- Incorrect treatments, medicines, advice and prescriptions
- Diagnosis delay
- Non referral to a specialist
Once a claim has been made the onus is on the claimant to prove their case and they will need to show the following:
- the medical practitioner owed a duty of care
- there was a breach of that duty
- harm followed as a result
What happens next?
In order to establish whether a claim is valid it will be investigated by independent medical advisors. They will use the Bolam standard to decide whether your clinical management falls in line with practices for all consultants in your field. It is likely you will receive a notice of disclosure and you must then provide all the medical notes relating to the claim. It is only in certain cases where there are serious concerns for patient safety that a claim is referred to the GMC.
Again the onus is on the claimant to prove that care fell below the standard expected. It is also the responsibility of the medical experts to give a reasonable and logical opinion. Once a report is made the claimant must make the decision on whether to continue with the claim.
How long does the process take?
Formal action must be taken within three years, otherwise the claim becomes statute barred. The three years can be from the date of the incident or date of knowledge which is when the claimant first knew that treatment has caused a problem. This may be a considerable length of time after treatment or a diagnosis was given.
It is worth noting that children and young people have until the age of 21 years to make a claim. So even if the treatment was given to a teenager at the age of 14 years old a claim can be made a number of years later. Time limits do not apply to claimants who are deemed not to be able to handle their affairs, for example, patients with head injuries or mental issues. If a claim is to proceed the courts will then propose the timing for hearings.
Dealing with your solicitor
Once a claim has been received you will have 40 days to disclose your records, forwarding all copies of relevant material to your solicitor. You will also be asked by your solicitor to prepare a statement with full and detailed information relating to the consultations and treatments. Your solicitor will take on all communication with the claimant’s solicitors and handle all the necessary paperwork requesting background and information as required. It is possible that a claim can be settled rather than going to court and this is a discussion that your solicitor will have with you. Very few claims do actually go to court usually only around 2-5% each year.
Sometimes a case cannot be defended, for example, due to a lack of written evidence. However, your legal team will advise you on the best course of action. Out of court settlements are often agreed without admitting liability.
Going to court
In the rare circumstances of a claim proceeding to court, you will be required to attend and to give evidence to a judge. Again your legal team will be giving you advice to help you understand the process, and are alongside you in court. Court hearings usually last between two and three days, longer if there are more complex issues involved. There may be expert witnesses involved and you will be asked to give evidence. A judgement is generally given after the hearing and then dependent on the outcome damages are decided. The losing party will also need to cover all of the legal costs.
You will have the option to appeal against any judgement made but this will need to be done only on the advice of your legal representative. Bear in mind more time and costs are involved with an appeal.
Dealing with the media
Occasionally in high profile cases, or where there may be a high settlement, the media will be interested. Journalists attend court anyway and you might come across journalists and camera crews when you enter and leave the court. If you are asked for a comment by journalists it is best not to give this or indeed enter into a conversation with them at any time during the proceedings. If you have interest from the media you may want to speak to your legal team about preparing a statement to release to the press when a judgement is made.
This can also be a very stressful situation particularly when it might seem to be a personal criticism. If you feel anxious about a claim help is available from various sources including the GMC and BMA or speak to a family member or colleague.
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