What not to do if you receive a clinical negligence claim

The vast majority of clinical negligence claims are unsuccessful, but doctors can understandably react badly to being sued and this may jeopardise their defence. The MDU's Dr Claire Wratten explains five things not to do if you receive a claim.

Don't: Respond to the patient’s solicitor

The first you are likely to know about a claim is when you receive a letter from the patient or their solicitor requesting their medical records, accompanied by the patient’s signed consent to release the records.

This is known as a letter before action, and it may or may not give an indication of what the claim is likely to be about. Although it is upsetting to receive any correspondence raising the possibility of a claim, and even though you may want to defend your actions, it may make the claim more difficult to manage if you write to the solicitors or contact the patient directly to discuss the case, even at this early stage.

If you enter into correspondence, the claimant’s solicitor may assume you are managing your own defence and you could find yourself fielding unwanted calls and letters. Even worse, you might inadvertently say something which makes the claim more difficult to defend further down the line.

Do: Pass the letter on to your medical defence organisation as soon as you can.

Don't: Delay contacting your medical defence organisation

The civil litigation process runs to a strict timetable so it's not a good idea to put a solicitor's letter to one side to deal with days or even weeks later. We have 40 days to respond to a letter requesting clinical records and four months to respond in full to a letter of claim.

Time is pressing and your MDO will need to assemble the necessary documentation. Initially, you will be asked to send us all the correspondence from the patient’s solicitor, a signed note formally instructing us, your contact details, the patient’s records and a factual report of your involvement with the patient and details of any other clinicians involved. It might also be in your interest for us to seek expert advice, instruct solicitors and to meet you to obtain a statement.

Do: Send all documentation needed to your MDO without delay.

Don't: Lose perspective

Avoid thinking that the claim is an indictment of you or your practice: sadly, most GPs will face at least one claim during their professional working life, even if their clinical management has been appropriate.

Finding out that you are being sued by a patient or their relative can be very upsetting but the vast majority are discontinued in the face of a robust defence, or because the claimant had no real case. In fact, 80% of MDU medical claims fell into this category in 2015.

If a claim needs settling then that should be done at an early stage, with your agreement, to avoid causing unnecessary distress to all concerned. However, it’s important not to settle defensible claims on purely economic grounds. You will be involved in such decisions.

It may help to talk to colleagues about what you are going through (bearing in mind your duty of confidentiality) and I’d also encourage GPs to talk to their claims handler about their concerns as we can provide support, advice and reassurance.

Do: Remember the vast majority claims notified to the MDU are defended without a settlement.

Don't: Talk to the press

If you are approached by the media for a comment about a case, don’t be tempted to give your side of the story. There is a real risk of breaching patient confidentiality and being censured by the GMC, as well as helping the journalist write a more high profile story.

The best approach is to explain that your duty of patient confidentiality prevents you from commenting (even if the patient has spoken to the press about the allegations). Depending on the outcome, you may want to make a brief statement at the end of a case but your MDO can advise you on this when the time comes. 

Do: Contact your MDO’s press office for advice.

Don't: Put your life on hold

The civil litigation process can move quite slowly. Years can pass between receipt of a letter before action and a formal letter of claim and many claimants will decide not to take things further. Even after formal proceedings have begun, it’s not unusual for claims to be discontinued, particularly after expert reports have been obtained and exchanged.

Only 1-2% of claims ever reach a courtroom but in the very unlikely event that a case gets to court, your MDO can assist you through each step and provide you with the best possible support and legal representation.

Do: Try to remain objective while the legal process takes it course.

  • Dr Claire Wratten is a claims team manager at the MDU

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