Receiving a claim for clinical negligence is a daunting prospect; unfortunately for those working in medicine, it is also increasingly likely. Dr Graham Howarth, Head of Medical Services in Africa at the Medical Protection Society takes you step-by-step through the process.
Although most doctors will avoid claims for clinical negligence during their careers, the possibility of receiving one remains. Large claims in particular are on the rise.
Because of this, we thought it useful to provide doctors with a guide of how a civil claim progresses.
Warning signs
Because a claim for clinical negligence can arise many years after an adverse event took place, you may not anticipate a claim coming – but at other times you will be aware that something has gone wrong, in which case you should notify MPS, or your insurer, at the earliest opportunity. The earlier we are in receipt of the facts, the sooner we can start to consider how we can best provide assistance.
An indication that a claim is possible is a request for a patient’s records. This should not be ignored as almost inevitably the patient will be entitled to them.
Essentially, any request for records from a solicitor needs the consent of the patient. If the solicitor is acting on behalf of the patient, it is usually safe to assume the request is being made on the patient’s instructions – but a signed consent form is still preferred.
When responding to the request, it is vital that you:
- Send a copy of the contemporaneous records
- Do not modify the records in any way
- Do not just send out a summary of the records.
The claim is made
The claim officially begins with the issuing of a Letter of Demand. This sets out what the claimant wants, gives a time frame in which to satisfy their demand and serves as a warning that you will be taken to court if you do not comply within said time frame.
If there is no reply to the Letter of Demand, the claimant invariably issues a Summons, which is a document that is stamped by the court and lays out the details of the claim. The particulars of claim, which set out the allegations against a doctor, usually accompany the Summons.
Here it is absolutely vital that you inform MPS if you haven’t yet been in touch – a Summons has a tight time frame within which to respond and if you fail to do so, the claimant can apply for a default judgment against you. If the court grants this application, this paves the way for a claim to be made against your property and the court can take some of your possessions to pay the claimant. This is called a Warrant of Execution.
Settle or defend
There are two choices in how to respond to the Summons – settle the case out of court, or defend to trial.
This is not a decision to be taken lightly; settle too easily and get a reputation as a soft touch; defend unnecessarily and accumulate costs.
Once the facts have been ascertained, expert opinion on whether the case is defensible or not can be sought. If MPS is assisting you with the claim and a decision to settle is taken, we will contact the claimant’s legal team to agree on a settlement figure. If the case is being defended, the Notice of Intention to Defend – the form for which is on the rear of the Summons – is completed and submitted to the claimant’s lawyer.
Following this, a documentary exchange takes place between both parties – this phase is called the Pleadings. The legal documents involved are prepared according to the rules of court. During this stage it is still possible for both parties to agree on a settlement out of court. But if the case is heading to court, MPS will at this stage seek the opinion of an independent expert.
It is important to note that this expert is neither for or against the doctor in question; the expert is for the court, and is there to provide a reflective opinion on the specifics of the case. Sometimes this will mean the MPS expert being critical of your care. However, it is much better to have this criticism given to your defence team at this stage than have it played out in open court. Your defence team will be better placed to prepare for the case if it has all the facts and potential vulnerabilities to hand.
A pre-trial meeting will be held, which brings together all experts involved in the case. Often this meeting also sees a final offer made to the claimant.
At trial
The trial plays out in customary fashion: initially the claimant and subsequently defendant lawyers presenting their side of the case. Evidence is presented and witnesses are called and they can be cross-examined. The ensuing judgment can then be followed by a review or appeal.
In South Africa, trials are often split into liability and quantum trials. In the former, the onus is on the claimant to prove the negligence of the defendant. If they are successful in their claim, the next issue is to decide on the quantum of the claim – here the claimant must prove how much compensation the defendant is liable to pay to the claimant.
Feeling the pressure
If all this sounds stressful, then that’s because it is – and in MPS’s experience the stress of going to trial is a common reason for doctors wishing to settle privately, avoiding the battleground of the courtroom.
MPS has a counselling service that is available to members who have experienced an adverse incident or medicolegal issue, and are experiencing emotional or psychological difficulties. The service is available 24 hours a day, seven days a week, with face-to-face counselling sessions available at a convenient time and place.