Clinical negligence claims – what to expect - England

Summary

A clinical negligence claim is a demand for financial compensation for alleged harm caused by substandard clinical care. Common reasons for claims include failure or delay in diagnosis, or incorrect treatment. In fact, many claims arise out of poor communication. 

This factsheet outlines the main stages in the legal process of a claim and what it means for you.

..... If you are notified that a patient is contemplating a claim against you, and this is not being dealt with by your NHS or other employer, you should contact MPS immediately and our Claims Assessment Team will advise you how to proceed.

The burden of proof

In order to bring a successful claim against you, the patient, or other person bringing the claim, has to prove on the balance of probabilities:

• Breach of duty – that the treatment was such that no reasonable practitioner would have delivered that care
• Causation – that the breach of duty or negligence caused or contributed to the injury, loss or damage suffered, and that the patient would not have suffered that injury without the breach
• Both these tests have to be established to prove negligence.

Before formal proceedings

The ‘clinical negligence pre action protocol’ aims to resolve claims without going to formal court proceedings wherever possible. The protocol can be a helpful opportunity to resolve matters swiftly and efficiently, so avoiding the stress, time, and costs associated with formal court proceedings, where possible and appropriate. However, the time limits under the protocol are short and require close co-operation to maximise this opportunity.

The protocol has a timescale that must be closely adhered to:

• If a patient or their lawyer requests copies of the patient’s records and has the appropriate consent, the request must be acknowledged within 14 days, and copies of the records must be supplied within 40 days.
• If the patient wishes to bring a claim, they must send the doctor a “letter of claim” setting out his or her version of events, the alleged injury and any compensation sought. The doctor’s representatives then have four months to send the patient a “letter of response”. You will be asked to outline:
  • What you did
  • The reasoning behind any decision you made
  • What your notes say.

Legal proceedings

Even when formal legal proceedings are issued, most claims are either discontinued, or settled by mediation or negotiation before going to trial.

It is very unlikely you will have to attend court and give evidence. However in some cases claims do progress to formal court proceedings, and occasionally continue on to trial.

Are there time limits for bringing a claim?

The first stage in court proceedings is that a claim form is prepared and ‘issued’ in a court. The basic time limit for issuing proceedings is three years from the date of injury, or the date the patient knew they had been caused an injury. However this can be longer in some circumstances, for example if the patient was a child; mentally ill; or there was an interval before the patient realised, or could be expected to know about, the injury.

For example, a child who was brain damaged during birth could bring a claim as an adult against the doctor or other health workers involved in the birth (or their parents could bring a claim).

Therefore in practice, there could be many years between the incident and claim. It is important you have protection in place to protect you in this situation.

The Claim Form

Once court proceedings are issued, the claimant has four months in which to serve a Claim Form. This must be acknowledged within 14 days. MPS will deal with all papers on your behalf. In the unlikely event that you receive court papers directly, send them on to us immediately and securely, alerting us by phone or email to let us know. In the rare cases which do go to trial, it typically takes 12-18 months from the time when court proceedings are first issued, to the trial taking place.

Minimising the risk

After a critical incident, the most important thing for patients is to know what went wrong and why. An open explanation and sharing of information is important to restore trust and reduce the frustration and anger a patient will feel if they think they are being ignored. This can be a catalyst for litigation.

There are some steps you can take to ensure you have a strong defence to a claim:

• Always write legible and detailed notes. The medical notes are essential evidential documents which can help to demonstrate that the standards of care were appropriate in all the circumstances. This is especially important as clinical negligence claims can be made years after the events and when your contact with the patient has ended. You may only have your notes to reconstruct details of what happened when defending yourself.
• Always keep in mind what your colleagues would do in a given situation. Of course your clinical judgment is important, but departing from guidelines or policy without a clear and documented reason can leave you with a heavy burden of demonstrating that it was a reasonable course of action if something goes wrong.
• If you are unsure of something do not plough on regardless. You have a professional responsibility to recognise and work within the limits of your competence and experience, and a duty to seek the advice of a senior or more experienced colleague.
• If you seek a colleagues’ advice, make sure this is documented in the records.